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EXHIBIT 10.22(a)
AMENDED AND RESTATED
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), made as of this 29th day of September,
1999, between Landlord, as hereinbelow defined, and Tenant, as hereinbelow
defined.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have heretofore entered into that certain
Lease Agreement (the "Original Lease"), dated as of February 26, 1999, pursuant
to which Tenant has leased all of the Second Floor consisting of 17,371 square
feet in an office building known as Centennial Tower located at 000 Xxxxxxxx
Xxxxxx, Xxxx xx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx;
WHEREAS, the Original lease was heretofore modified and amended
pursuant to that certain First Amendment to Lease Agreement (the "First
Amendment"), dated as of April 1, 1999, between Landlord and Tenant, and that
certain Second Amendment to Lease Agreement (the "Second Amendment"), dated as
of May 21, 1999, between Landlord and Tenant (the Original Lease, as so modified
and amended by the First Amendment and the Second Amendment, is hereinafter
referred to as the "Amended Lease");
WHEREAS, Landlord and Tenant desire to further modify the Amended Lease
for purposes of leasing or agreeing to lease an additional 35,841 square feet
consisting of all of the Third and Fourth Floors of Centennial Tower; and
WHEREAS, Landlord and Tenant desire to enter into this Lease for
purposes of amending and restating the Amended Lease in its entirety;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE SUM OF TEN AND NO/100
DOLLARS ($10.00) AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, Landlord and Tenant do hereby
modify, amend and restate the Amended Lease so that from and after the date
hereof, this Lease shall govern exclusively and in all respects the obligations
of Landlord and Tenant described herein:
1. DEFINITIONS
As used herein, the following capitalized words shall have the
following meanings:
"Actual Costs" means the actual amount paid or incurred by Landlord for
Operating Costs during any Calendar Year.
"Agreed Interest Rate" shall have the meaning set forth in Paragraph 10
of this Lease.
"Approximate Rentable Area of the Premises" means, from the
Commencement Date through the date immediately preceding the Third Floor
Expansion Effective Date or the Fourth Floor Expansion Effective Date, as the
case may be, 17,371 rentable square feet. Effective as of the Third Floor
Expansion Effective Date, the Approximate Rental Area of the Premises shall be
increased by 17,736 rentable square feet. Likewise, effective as of the Fourth
Floor Expansion Effective Date (which may occur prior to, contemporaneously
with, or after the Third Floor Expansion Effective Date), the Approximate Rental
Area of the Premises shall be increased by an additional 18,105 rentable square
feet.
"Base Rent" means the aggregate amount of Base Rent payable with
respect to the Premises, as
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indicated hereinbelow:
RENTAL
RATE PER
RENTABLE MONTHLY
DATE: SQ. FT. ANNUAL BASE RENT BASE RENT
----- ------- ---------------- ---------
From The Commencement Date $13.80 $239,719.80 plus the product One-Twelfth (1/12th) of
of July 22, 1999 through obtained by multiplying the square the amount calculated in
July 31, 2000: footage of the Third Floor the column to the
Expansion Premises and/or the immediate left hereof.
Fourth Floor Expansion Premises by
$13.80 after the Effective Dates
thereof
From August 1, 2000 through $14.71 $782,748.52 $65,229.04
July 31, 2001
From August 1, 2001 through $15.26 $812,015.12 $67,667.93
July 31, 2002
From August 1, 2002 through $15.89 $845,538.68 $70,461.56
July 31, 2003
From August 1, 2003 through $16.89 $898,750.68 $74,895.89
July 31, 2004
From August 1, 2004 through $17.15 $912,585.80 $76,048.82
July 31, 2005
From August 1, 2005 through $17.43 $927,485.16 $77,290.43
July 31, 2006
From August 1, 2006 through $17.72 $942,916.64 $78,576.39
July 31, 2007
From August 1, 2007 through $18.01 $958,348.12 $79,862.34
July 31, 2008
From August 1, 2008 through $18.31 $974,311.72 $81,192.64
July 31, 2009
"Base Year Operating Costs" means the amount of Operating Costs
actually incurred by Landlord with respect to the Premises, as adjusted in
accordance with subsection 6(c) hereinbelow, for calendar year 1999 with respect
to the Initial Premises and calendar year 2000 with respect to the Third Floor
Expansion Premises and the Fourth Floor Expansion Premises, respectively.
"Broker" means, collectively, Landlord's Broker and Tenant's Broker, if
any.
"Building" means the multi-story office building constructed on the
Property.
"Building Rentable Area" means 637,006 square feet.
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"Calendar Year" means each calendar year of the Lease Term.
"Commencement Date" shall have the meaning set forth in subparagraph
4(b) of this Lease.
"Estimated Costs" means Landlord's reasonable estimate of Actual Costs
for each Calendar Year which shall be prepared in good faith by Landlord.
"Fourth Floor Expansion Effective Date" means the date upon which
substantial completion of the Tenant Improvements to be constructed by Tenant in
the Fourth Floor Expansion Premises occurs, which date shall in no event and
under no circumstances be later than March 1, 2000 unless substantial completion
is delayed beyond such date as a result of any delay by Landlord, Landlord's
contractor's or agents in completing Landlord's Work (if any) with respect to
the Fourth Floor Expansion Premises, or as a result of any action or inaction of
Landlord, Landlord's contractors or agents, in which event the foregoing date
shall be extended for each day of such Landlord delay (it being understood,
however, that any Tenant Delay shall not operate to delay in any respect
whatsoever the Fourth Floor Expansion Effective Date). For purposes of this
Paragraph, substantial completion of the Tenant Improvements to be constructed
by Tenant in the Fourth Floor Expansion Premises shall be deemed to have
occurred when Tenant has substantially completed the work to be constructed or
installed pursuant to the provisions of the Fourth Floor Expansion Premises
Lease Improvement Agreement, subject only to completion of punchlist items by
Tenant's general contractor (and exclusive of the installation of all telephone
and other communications facilities and equipment, including installation of the
Telecommunications Equipment, and other finish work to be performed by parties
other than Tenant). In the event of any dispute as to when and whether the work
performed or required to be performed by Tenant has been substantially
completed, the certificate of the AIA registered architect rendering services
with respect to the Tenant Improvements on or about the Fourth Floor Expansion
Premises or a temporary or final certificate of occupancy issued by the local
governing authority shall be conclusive evidence of such completion, effective
on the date of such architect's certificate or said temporary or final
certificate of occupancy.
"Fourth Floor Expansion Premises" means all of the space on the 4th
floor of the Building, being the space labeled as such on Exhibit "B-1" attached
hereto, consisting of 18,105 rentable square feet (representing the rentable
square footage of the entire Fourth Floor of the Building), together with any
improvements now or at any time hereinafter comprising or built into such space.
"Fourth Floor Expansion Premises Lease Improvement Agreement" means the
Fourth Floor Expansion Premises Lease Improvement Agreement attached hereto as
Exhibit "E" and by this reference incorporated herein.
"Fourth Floor Expansion Premises Schedule of Improvements" means the
scheduling matters set forth on Exhibit "E-1" attached hereto and by this
reference incorporated herein.
"Health/Fitness Facility" shall have the meaning set forth in Paragraph
46 of this Lease.
"Initial Improvements Schedule of Improvements" means the scheduling
matters set forth in Exhibit "C-1" attached hereto and by this reference
incorporated herein.
"Initial Premises" means all of the space on the 2nd floor of the
Building labeled as such on Exhibit "B" attached hereto, consisting of
approximately 17,371 square feet, together with any improvements now or at any
time hereinafter comprising or built into such space.
"Landlord" means 000 Xxxxxxxx Xxxxxx Associates, a Georgia general
partnership, its successors and assigns.
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"Landlord's Address" means 000 Xxxxxxxx Xxxxxx Associates x/x
Xxxxxxxx/XXX, Xxx., Xxxxx 0000, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
"Landlord's Allowance" shall have the meaning set forth in the Primary
Lease Improvement Agreement and the Fourth Floor Expansion Premises Lease
Improvement Agreement, as the case may be.
"Landlord's Broker" means Insignia/ESG, Inc.
"Landlord's Punch List" means the schedule of punchlist items relating
to Landlord's Work and the Tenant Improvements to be constructed by Landlord in
the Third Floor Expansion Premises, which schedule shall be prepared by Landlord
and approved by Tenant within ten (10) days after the Premises being improved by
Landlord have been substantially completed by Landlord and delivered to Tenant;
provided, however, that such schedule shall not include any items of work which
will substantially interfere with Tenant's use of such Premises.
"Landlord's Work" shall have the meaning set forth in the Primary Lease
Improvement Agreement and the Fourth Floor Expansion Premises Lease Improvement
Agreement, as the case may be.
"Lease" means this Lease, including all exhibits attached hereto.
"Lease Date" means the date set forth in the first paragraph of this
Lease.
"Lease Improvement Agreements" means, collectively, the Primary Lease
Improvement Agreement and the Fourth Floor Expansion Premises Lease Improvement
Agreement.
"Lease Term" means the period commencing on the Commencement Date and
terminating on the last day of the 120th month thereafter (that is, July 31,
2009), as the same may be extended in accordance with the terms hereof.
"Operating Costs" means all expenses incurred by Landlord as reasonably
determined by Landlord to be necessary or appropriate for the operation,
maintenance, and repair of the Building, the personal property used in
conjunction therewith, the land upon which the Building is situated. Operating
Costs shall include, but are not limited to, all expenses incurred by Landlord
for heating, cooling, electricity, water, gas, sewers, refuse collection,
telephone, cable and other communication services not chargeable to tenants, and
similar utility services; the cost of supplies, janitorial and cleaning,
security services, landscaping maintenance and replacements, window washing,
insurance, management fees, services of independent contractors performing
duties necessary to the operation of the Building, personal and real property
taxes, the cost of maintaining and operating the Building's Health/Fitness
Facility (subject to the provisions of Paragraph 46 of this Lease), alterations
or improvements made to the Building by reason of the laws and/or the
requirements of any insurer, mortgagee (only where such requirements from
insurer or mortgagee concern safety or structural features of the Building and
are commercially reasonable in light of requirements generally imposed in the
insurance or real estate lending industries with respect to similar buildings),
or governmental agency, the amortization (together with reasonable financing
charges) of the cost of installation (including labor and materials) of capital
investment items amortized in accordance with generally accepted accounting
principles and Internal Revenue Service rules and regulations, the cost of
compensation (including employment taxes and fringe benefits) of all persons who
perform duties in connection with such Operating Costs, including the Building
manager, and any other expense or charge which, when determined in accordance
with accepted principles of sound management and accounting practices applicable
to first-class office building complexes and consistently applied, would be
considered an expense of maintaining, operating or repairing the Building and
the land upon which it is situated.
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Operating Costs does not include the following: Leasing commissions,
finders' fees, brokerage fees and similar fees, and costs incurred with the
negotiation or enforcement of leases but not management fees; rent under any
ground leases; costs of furnishing services to other tenants or occupants to the
extent that such services are materially in excess of services Landlord offers
to all tenants at Landlord's expense; lease takeover costs incurred by Landlord
in connection with new leases at the Property; costs and expenses of the sale of
all or any portion of the Property; amounts received by Landlord through the
proceeds of insurance to the extent the proceeds are compensation for expenses
which were previously included in operating expenses; expenses for which
Landlord is reimbursed through insurance; costs incurred by Landlord with
respect to repairs, goods, and services (including utilities sold and supplied
to tenants and occupants of the Property) to the extent that Landlord is
entitled to reimbursement for such costs; costs incurred by Landlord due to the
violation by Landlord of the terms and conditions of any lease of space in the
Property; interest, points and fees on debt or amortization or for any mortgage
or mortgages encumbering the Property, or any part thereof, and all principal,
escrow deposits and other sums paid on or in respect to any indebtedness
(whether or not secured by a mortgage lien) and on any equity participation of
any lender or lessor, and all costs incurred in connection with any financing,
refinancing or syndication of the Property, or any part thereof; depreciation
and, except as otherwise provided herein, amortization; the costs of the
original construction of the Property and the improvements, income, franchise,
transfer, inheritance, capital stock, estate, profit, gift, gross receipts or
succession taxes; salaries, fringe benefits and other compensation for personnel
not directly involved in the operation or management of the Building; costs of
repairs or replacements incurred by reason of fire or other casualty or
condemnation in excess of the value of the insurance deductible; costs for
performing tenant installations for any individual tenant or for performing work
or furnishing services to or for individual tenants at such tenant's expense and
any other contribution by Landlord to the cost of tenant improvements to the
extent such work is reimbursed or capitalized; Landlord's general corporate
overhead and general administrative expenses, except as related to the operation
or maintenance of the Building; rentals and other related expenses incurred in
leasing air-conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature except for customary office equipment. All
special assessments by the local governing authority, which may be paid by
Landlord in installments, shall be paid by Landlord in the maximum number of
installments permitted by law and charged as operating expenses only in the year
in which the assessment installment is actually paid.
"Permitted Use" means general office purposes and, with respect to the
Third Floor Expansion Premises and the Fourth Floor Expansion Premises only (and
any portion of the Fifth Floor of the Building leased by Tenant pursuant to the
terms of Paragraph 3 of the Special Stipulations, or otherwise), general office
purposes and the installation, operation, maintenance, replacement and other
lawful uses by Tenant of the Telecommunications Equipment.
"Plans" shall have the meaning set forth in the Lease Improvement
Agreements.
"Premises" means, initially from and after the Commencement Date, the
Initial Premises until the Third Floor Expansion Effective Date or the Fourth
Floor Expansion Effective Date, respectively, on which effective dates the
Premises shall then and thereafter until the expiration or earlier termination
of this Lease include the Third Floor Expansion Premises and the Fourth Floor
Expansion Premises, as the case may be.
"Primary Lease Improvement Agreement" means the Primary Lease
Improvement Agreement attached as Exhibit "C" and by this referenced
incorporated herein.
"Property" means the land on which the Building is erected, which land
is more particularly described in Exhibit "F" attached hereto and by this
reference incorporated herein.
"Rent" means Base Rent plus Tenant's Share of Operating Costs plus all
other charges and other
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amounts owed by Tenant to Landlord pursuant to this Lease.
"Rules and Regulations" means the rules and regulations for occupants
of the Building, as set forth in Exhibit "A" attached hereto and by this
reference incorporated herein, together with such reasonable modifications
thereof and additions thereto from time to time put in effect by Landlord.
"Schedule of Improvements" means the timing for performance by
Landlord, Tenant, and certain other parties of various responsibilities for
purposes of completing the Tenant Improvements, as more particularly described
and identified on the Initial Improvements Schedule of Improvements, the Third
Floor Expansion Premises Schedule of Improvements and the Fourth Floor Expansion
Premises Schedule of Improvements, respectively.
"Security Deposit" means the sum of the cash deposited by Tenant with
Landlord to be held by Landlord as security for Tenant's obligations under the
Lease in the manner expressed in Paragraph 33 hereof.
"Special Stipulations" means the matters set forth in Exhibit "G"
attached hereto and by this reference incorporated herein.
"Telecommunications Equipment" shall mean all telephone switching
equipment, computers, consoles, servers, instruments, wires, cabling,
distribution, devices, and other equipment installed in the Fourth Floor
Expansion Premises (and, with Landlord's prior written consent [which consent
shall not be unreasonably withheld, conditioned or delayed] and satisfaction of
the applicable terms and conditions of this Lease governing installation, use
and operation, may be installed on the Third Floor Expansion Premises and any
portion of the Fifth Floor of the Building leased by Tenant pursuant to the
terms of Paragraph 3 of the Special Stipulations, or otherwise) and used by
Tenant in connection with the operation by Tenant of Tenant's lawful business,
including, without limitation, internet web site hosting and design,
installation and maintenance, and telecommunications operations procedures and
matters incidental and accessory thereto. Without limiting the scope of the
preceding definition, a Schedule of Telecommunications Equipment originally
contemplated to be installed within the Fourth Floor Expansion Premises is
attached hereto as Exhibit "I" and by this reference incorporated herein. Any
material change in the kind, character or quality of the Telecommunications
Equipment described on such Exhibit "I" that may materially impact the capacity
of the Building to support such Telecommunications Equipment from a load
bearing, electrical, mechanical or any other capacity shall be disclosed in
writing by Tenant to Landlord and approved by Landlord in writing, which
approval shall not to be unreasonably withheld, conditioned or delayed.
"Tenant" means Interland, Inc., a Georgia corporation.
"Tenant Improvements" means the Tenant Improvements described and
identified in the Primary Lease Improvement Agreement and the Fourth Floor
Expansion Premises Lease Improvement Agreement.
"Tenant's Broker" means Xxxx Xxxxxxxx & Associates.
"Tenant's Cost" shall have the meaning set forth in the Primary Lease
Improvement Agreement and the Fourth Floor Expansion Premises Lease Improvement
Agreement, as the case may be.
"Tenant's Delay" means any delay in substantial completion of the
Tenant Improvements as a result of (a) Tenant's failure to agree to plans,
specifications and cost estimates before the dates referred to in the Schedule
of Improvements, (b) Tenant's request for materials, finishes or installations
other than Landlord's standard, (c) Tenant's changes in plans, or (d) the
performance or completion by a party
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employed by Tenant.
"Tenant's Pro Rata Share" means a ratio, the numerator of which is the
Approximate Rentable Area of the Premises, and the denominator of which is the
Building Rentable Area, subject to increase or decrease due to an increase or
decrease of the rentable square footage of either the Building or the Premises.
Tenant's Pro Rata Share shall be adjusted for partial years at the beginning and
end of the Lease Term.
"Third Floor Expansion Effective Date" means the date upon which the
Third Floor Expansion Premises has been substantially completed (as defined in
subparagraph 4(c), below) in accordance with the plans and specifications
therefor (other than any immaterial work described and identified on Landlord's
Punch List which cannot be completed on such date, provided such incompletion
will not substantially interfere with Tenant's use of the Third Floor Expansion
Premises); provided, however, that the date of substantial completion for
purposes of determining the Third Floor Expansion Effective Date and the payment
of Rent with respect to the Third Floor Expansion Premises shall be accelerated
by the number of days of any Tenant Delay, and shall in any event be no later
than March 1, 2000 unless a work or other delay is caused by Landlord or its
agents or contractors by reason of any of such parties' failure to timely
complete Landlord's Work or the Tenant Improvements in the Third Floor Expansion
Premises, or otherwise.
"Third Floor Expansion Premises" means all of the Third Floor of the
Building, being the space labeled as such on Exhibit "B-2" attached hereto,
consisting of 17,736 rentable square feet, together with any improvements now or
at any time hereinafter comprising or built into such space.
"Third Floor Expansion Premises Schedule of Improvements" means the
scheduling matters set forth in Exhibit "C-2" attached hereto and by this
reference incorporated herein.
2. PREMISES AND PROPERTY
Landlord hereby demises and leases to Tenant and Tenant hereby accepts
and leases from Landlord the Premises.
3. USE
Tenant shall use and occupy the Premises for the Permitted Use and for
no other use or purpose without the prior written consent of Landlord. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Building, nor use or allow the Premises to be used for any improper,
immoral, unlawful, or objectionable purpose or for any business, use, or purpose
deemed to be disreputable or inconsistent with the operation of a first-class
office building, nor shall Tenant cause, maintain or permit any nuisance in, on,
or about the Premises. Tenant shall not commit or suffer the commission of any
waste in, on, or about the Premises.
4. TERM AND POSSESSION
(1) The term of this Lease shall be for the Lease Term (or until
sooner terminated as herein provided) beginning on the
Commencement Date, except that if the Commencement Date is
other than the first day of a calendar month, the Lease Term
shall be extended for the remainder of that calendar month at
the end of the term.
(2) The Commencement Date shall be July 22, 1999.
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(3) Landlord agrees to perform the work required to be performed
by Landlord under the Lease Improvement Agreements with
diligence, subject to events and delays due to causes beyond
Landlord's reasonable control. The Initial Premises and the
Third Floor Expansion Premises shall be deemed substantially
completed and possession delivered when Landlord has
substantially completed the work to be constructed or
installed pursuant to the provisions of the Primary Lease
Improvement Agreement with respect thereto, subject only to
the completion of items on Landlord's Punch List (and
exclusive of the installation of all telephone and other
communications facilities and equipment and other finish work
to be performed by parties other than Landlord). In the event
of any dispute as to when and whether the work performed or
required to be performed by Landlord has been substantially
completed, the certificate of an A.I.A. registered architect
rendering services with respect to the Tenant Improvements on
or about the Initial Premises or the Third Floor Expansion
Premises, as the case may be, or a temporary or final
certificate of occupancy issued by the local governing
authority shall be conclusive evidence of such completion,
effective on the date of said architect's certificate or said
temporary or final certificate of occupancy. Landlord shall
deliver Landlord's Punch List to Tenant simultaneously with
the delivery of the Initial Premises and the Third Floor
Expansion Premises, as the case may be. Tenant shall approve
or make reasonable additions to Landlord's Punch List within
five (5) days after delivery of the Initial Premises and the
Third Floor Expansion Premises, as the case may be. Subject to
delays caused by Tenant or otherwise beyond Landlord's
reasonable control, Landlord shall complete the items listed
on Landlord's Punch List within thirty (30) days following
delivery of the Initial Premises and the Third Floor Expansion
Premises, as the case may be.
(4) If substantial completion of the Third Floor Expansion
Premises, or possession thereof by Tenant, is delayed because
any tenant or other occupant thereof holds over and the
Landlord is delayed, using good faith efforts in Landlord's
discretion in acquiring possession thereof, Landlord shall not
be deemed in default, nor in any way liable to Tenant because
of such delay, and Tenant agrees to accept possession of such
premises at such time as Landlord is able to tender the same,
which date shall thenceforth be deemed the Third Floor
Expansion Effective Date notwithstanding any other provision
hereof to the contrary.
(5) The taking of possession by Tenant shall be deemed
conclusively to establish that the Building and the Premises
with respect to which possession is so taken have been
completed in accordance with the plans and specifications and
are in good and satisfactory condition as of when possession
was so taken (except for such items, if any, as are described
in Landlord's Punch List). Contemporaneously with execution of
this Lease and thereafter and upon the occurrence of each of
the Third Floor Expansion Effective Date and the Fourth Floor
Expansion Effective Date, Tenant shall execute and deliver to
Landlord a commencement and estoppel certificate in the form
attached hereto as Exhibit "D" and by this reference
incorporated herein, as modified to accurately reflect the
terms of this Lease.
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5. RENT
(1) Tenant shall pay to Landlord Base Rent as set forth in
Paragraph 1 hereof and other items of Rent as set forth herein
commencing on the Commencement Date and throughout the Lease
Term, monthly in advance (unless otherwise specified in this
Lease) on or before the first day of each month during the
term hereby demised in lawful money of the United States,
without demand, deduction or offset whatsoever, to Landlord at
Landlord's Address or to such other firm or to such other
place as Landlord may from time to time designate in writing.
If the Commencement Date occurs on a day other than the first
day of a calendar month, the monthly rental for such month
shall be appropriately prorated.
(2) Tenant agrees that if Rent or any other payment due hereunder
from Tenant to Landlord remains unpaid ten (10) days after
said amount is due, the amount of such unpaid rent or other
payment shall be increased by a late charge to be paid to
Landlord by Tenant in an amount equal to the greater of (i)
Fifty and No/100 Dollars ($50.00) per day that such payment is
delinquent, or (ii) five percent (5%) of the amount of the
delinquent rent or other payment. The amount of the late
charge to be paid to Landlord by Tenant for any month shall be
computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges, then
outstanding. Tenant agrees that such amount is a reasonable
estimate of the loss and expense to be suffered by Landlord as
a result of such late payment by Tenant and may be charged by
Landlord to defray such loss and expense. The provisions of
this paragraph in no way relieve Tenant of the obligation to
pay Rent or other payments on or before the date on which they
are due, nor do the terms of this paragraph in any way affect
Landlord's remedies pursuant to Paragraph 21 of this Lease in
the event said Rent or other payment is unpaid after the date
due.
6. ADJUSTMENTS TO RENT
(1) [INTENTIONALLY OMITTED]
(2) Tenant's Share of Increased Operating Costs. In addition to
payment of Base Rent and all other charges provided for in
this Lease, Tenant shall pay as part of Rent Tenant's Pro Rata
Share of any increase in the total annual Operating Costs.
Said payments shall be made in the following manner:
(i) At least thirty (30) days prior to the commencement of
each Calendar Year during the term hereof, Landlord shall furnish Tenant with a
written statement, prepared in good faith, setting forth the Estimated Costs for
such Calendar Year, and a statement showing the amount by which Tenant's Pro
Rata Share of the Estimated Costs exceeds Tenant's pro rata share of Base Year
Operating Costs. Tenant shall pay one-twelfth (1/12) of its Pro Rata Share of
such excess monthly.
(ii) Within ninety (90) days after the close of each Calendar
Year, Landlord shall deliver to Tenant a written statement setting forth the
Actual Costs during that Calendar Year. If such Actual Costs exceed the
Estimated Costs paid by Tenant to Landlord for such Calendar Year, Tenant shall
pay to Landlord its Pro Rata Share of such excess within forty-five (45) days
after receipt of such statement. If the statement shows such Actual Costs to be
less than the Estimated Costs, then Landlord shall credit the difference against
rent due for the calendar months next following receipt of Landlord's written
statement, or refund the difference to Tenant if the term has expired.
(3) Gross Up of Operating Costs. Anything to the contrary in this
Paragraph 6 notwithstanding, in the event that the Building is
not at least 95% occupied during any period of calendar year
1999 or any subsequent or Calendar Year, Landlord shall make
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reasonable adjustments necessary to project what the Actual
Costs would have been had the Building been 95% occupied
during the full term of the year and those projected Operating
Costs shall be deemed to be the Actual Costs for purposes of
this Paragraph.
7. COMPLIANCE WITH LAWS
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance, or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Except as may be contemplated by the
provisions of Paragraphs 4, 5, 6, 8 and 14 of the Special Stipulations, Tenant
shall not do or permit anything to be done on or about the Premises or bring or
keep anything therein which will in any way increase the rate of any insurance
upon the Building or any of its contents or cause a cancellation of said
insurance or otherwise affect said insurance in any manner and Tenant shall, at
its sole cost and expense, promptly comply with all laws, statutes, ordinances,
and governmental rules, regulations, or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use, or occupancy of the Premises, excluding structural
changes not related to or affected by alterations or improvements made by or for
Tenant or Tenant's acts. The judgment of any court of competent jurisdiction or
the admission of Tenant in an action against Tenant, whether Landlord be a party
thereto or not, that Tenant has so violated any such law, statute, ordinance,
rule, regulation, or requirement, shall be conclusive evidence of such violation
as between Landlord and Tenant.
8. ALTERATIONS
Tenant shall not make or suffer to be made any alterations, additions,
or improvements in, on, or to the Premises or any part thereof without the prior
consent of Landlord. Any such alterations, additions, or improvements in, on, or
to said Premises, except for Tenant's movable furniture and equipment, shall, at
Landlord's election, immediately become Landlord's property. Except as otherwise
provided in the Special Stipulations, at the expiration or sooner termination of
the term herein provided, such alterations, additions or improvements shall, at
Landlord's option, either (i) remain on the Premises without compensation to
Tenant, or (ii) with respect to alterations made after the Commencement Date
(other than Tenant Improvements), be removed by Tenant at Tenant's sole cost and
expense and Tenant shall forthwith and with all due diligence, at its sole cost
and expense, repair and restore the Premises to the condition existing prior to
installation of such alterations, ordinary wear and tear excepted. At the time
that Tenant request's Landlord's prior consent to any alteration, Tenant may
request Landlord's determination as to whether such alteration, addition or
improvement shall, at the termination of the Lease, remain a part of the
Premises as Landlord's property, or be removed by Tenant as described
hereinabove. In the event Landlord consents to the making of any alteration,
addition, or improvement by Tenant, the same shall be made by Tenant, at
Tenant's sole cost and expense, in accordance with all applicable laws,
ordinances, and regulations and all requirements of Landlord's and Tenant's
insurance policies, and in accordance with plans and specifications approved by
Landlord. Any contractor, subcontractor or other person selected by Tenant to
make such alterations, additions or improvements, must first be approved in
writing by Landlord, or, at Landlord's option, the alteration, addition, or
improvement shall be made by Landlord for Tenant's account and Tenant shall
reimburse Landlord for the cost thereof within twenty (20) days after receipt of
a statement. Landlord and Tenant recognize that some types of alterations,
additions or improvements to the Premises may affect the density of use of the
Premises, and that such changes may require mechanical changes in how Building
services are provided to the Premises. Therefore, in considering any proposed
alterations, additions or improvements, Landlord may also require that Tenant
reimburse Landlord for the cost of changes to mechanical systems providing
Building services to the Premises (e.g., re-routing or otherwise adjusting HVAC
conduits serving the Premises). Landlord shall have the right to assess an
administrative fee to cover Landlord's expense in reviewing any proposed
alteration, addition or improvement (other than with respect to the Tenant
Improvements with respect to which Tenant is required to pay a construction
management fee in
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accordance with the terms of the Leasehold Improvement Agreements). In addition,
subject in all respects to the qualifications contained in the parenthetical
contained in the immediately preceding sentence, if such alteration, addition or
improvement is approved, Landlord shall also have the right to assess an
administrative fee to cover Landlord's expense in supervising Tenant's work in
implementing such alteration, addition or improvement. Such assessments of
administrative fees shall be payable upon demand, and shall be considered part
of Rent under this Lease.
9. REPAIR
(1) By taking possession of the Premises, Tenant accepts the
Premises with respect to which possession is so taken as being
in the condition in which Landlord is obligated to deliver
them and otherwise in good order, condition and repair (except
for such items, if any, as are described in Landlord's Punch
List). Tenant shall, at all times during the term hereof at
Tenant's sole cost and expense, keep the Premises and every
part thereof in good order, condition and repair, excepting
ordinary wear and tear, damage thereto by fire, earthquake,
Act of God or the elements. Tenant shall upon the expiration
or sooner termination of the term hereof, unless Landlord
demands otherwise as in Paragraph 8 hereof provided, surrender
to Landlord the Premises and all repairs, changes,
alterations, additions, and improvements thereto in the same
condition as when received, or when first installed, ordinary
wear and tear, damage by fire, earthquake, Act of God, or the
elements excepted. It is hereby understood and agreed that
Landlord has no obligation to alter, remodel, improve, repair,
decorate, or paint the Premises or any part thereof except as
specified in the Initial Premises Lease Improvement Agreement
and the Expansion Space Lease Improvement Agreement, and that
no representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant, except as
specifically herein set forth.
(2) Tenant shall repair all damage to the Building including
common areas, restrooms, hallways, elevators, or any other
area, fixture, or equipment of the Building caused by Tenant's
installation or removal of its property or resulting from any
negligent act or conduct of Tenant, its employees,
contractors, agents, licensees or invitees.
(3) All maintenance or repairs made by Tenant shall be made in
accordance with all applicable laws, ordinances and
regulations, and all requirements of Landlord's and Tenant's
insurance policies and any contractor or person selected by
Tenant to make the same, and all subcontractors must first be
approved in writing by Landlord, or, at Landlord's option, the
maintenance or repair shall be made by Landlord for Tenant's
account and Tenant shall reimburse Landlord for the cost
thereof within twenty (20) days after receipt of a statement.
In any event, all repairs shall be equal in quality and
workmanship to the original work.
10. LIENS
Tenant shall keep the Premises free from any liens arising out of any
work performed, material furnished, or obligations incurred by Tenant. In the
event that Tenant shall not, within ten (10) days following the imposition of
any such lien, cause the same to be released of record by payment or posting of
a proper bond, Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to it by Tenant on demand and with interest at the rate of
eighteen percent (18%) per annum or the rate four percent (4%) higher than the
prime commercial lending rate from time to time of Wachovia Bank, N.A.,
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whichever is more, provided however that if such rate exceeds the maximum rate
permitted by law the maximum lawful rate shall apply; the interest rate so
determined is hereinafter called the "Agreed Interest Rate." Landlord shall have
the right at all times to post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem proper for the
protection of Landlord, the Premises, the Building, and any other party having
an interest therein, from mechanics' and materialmen's liens, and Tenant shall
give to Landlord at least five (5) business days prior written notice of
commencement of any construction on the Premises.
11. ASSIGNMENT AND SUBLETTING
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(1) Tenant shall not sell, assign, encumber, or otherwise transfer
by operation of law or otherwise this Lease or any interest
herein, sublet the Premises or any portion thereof, or suffer
any other person to occupy or use the Premises or any portion
thereof, without the prior written consent of Landlord as
provided herein, nor shall Tenant permit any lien to be placed
on the Tenant's interest by operation of law. Tenant shall, by
written notice, advise Landlord of its desire from and after a
stated date (which shall not be less than thirty (30) days nor
more than ninety (90) days after the date of Tenant's notice)
to sublet the Premises or any portion for any part of the term
hereof; and in such event Landlord shall have the right, to be
exercised by giving written notice (a "Recapture Notice") to
Tenant within fifteen (15) business days after receipt of
Tenant's notice, to terminate this Lease as to the portion of
the Premises described in Tenant's notice and such notice
shall, if given, terminate this Lease with respect to the
portion of the Premises therein described as of the date
stated in Tenant's notice; provided, however, that Tenant may
elect to withdraw any such assignment or subletting notice
upon receipt of a Recapture Notice from Landlord by delivering
written notice (a "Reinstatement Notice") to Landlord of such
withdrawal within three (3) business days from receipt of a
Recapture Notice and, upon receipt by Landlord of the
Reinstatement Notice, the original notice sent by Tenant to
Landlord for purposes of requesting an assignment or sublease
of Tenant's interest hereunder shall be withdrawn and this
Lease shall remain unaltered and in full force and effect. Any
assignment or subletting notice by Tenant shall state the name
and address of the proposed subtenant, and Tenant shall
deliver to Landlord a true and complete copy of the proposed
sublease with said notice. If said notice shall specify all of
the Premises and Landlord shall give a Recapture Notice with
respect thereto, this Lease shall terminate on the date stated
in Tenant's notice (unless any such Recapture Notice is
withdrawn as provided hereinabove by Tenant's timely delivery
of a Reinstatement Notice to Landlord). If, however, this
Lease shall terminate pursuant to the foregoing with respect
to less than all the Premises, the rent, as defined and
reserved hereinabove and as adjusted pursuant to Paragraph 6,
shall be adjusted on a pro rata basis to the number of square
feet retained by Tenant, and this Lease as so amended shall
continue thereafter in full force and effect. If Landlord,
upon receiving said notice by Tenant with respect to any of
the Premises, shall not exercise its right to terminate,
Landlord will not unreasonably withhold or delay its consent
to Tenant's subletting the Premises specified in said notice.
Landlord, acting reasonably and in good faith, may deny
consent to an assignment or sublease if, by way of
illustration but not limitation, (i) the credit rating of the
proposed assignee or sublessee is unacceptable, (ii) the type
of business to be conducted by the proposed assignee or
sublessee on the Premises is in violation of any exclusive
rights granted to other tenants of the Building or is
inappropriate for a first class office building, (iii) the
density of use of the Premises by the proposed assignee or
sublessee is significantly greater than the then current
density of use of the Premises by Tenant, or (iv) the rate of
compensation, including, but not limited to, all rent
requested by Tenant for the portion of the Premises to be
subleased or for the assignment of the Lease would impact upon
or impair Landlord's ability to rent space in the Building at
the then market rate as offered by Landlord. Tenant shall, at
Tenant's own cost and expense, discharge in full any
outstanding commission obligation on the part of Landlord with
respect to this Lease, and any commissions which may be due
and owing as a result of any proposed assignment or
subletting, whether or not the Lease is terminated pursuant
hereto and rented by Landlord to the proposed subtenant or any
other tenant. Tenant shall pay to Landlord immediately upon
receipt fifty percent (50%) of all rent or other consideration
received by Tenant from any such assignee or subtenant, either
initially or over the term of the assignment or sublease,
which is in excess of (x) the rental obligation required under
the terms of this Lease for the Premises or portion thereof
for which consent is granted, and (y) marketing fees,
brokerage
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commissions and build-out expenses of Tenant in entering into
such assignment or sublease.
(2) Any subletting hereunder by Tenant shall not result in
Tenant's being released or discharged from any liability under
this Lease. As a condition to Landlord's prior written consent
as provided for in this Paragraph 11, the subtenant or
subtenants shall agree in writing to comply with and be bound
by all of the terms, covenants, conditions, provisions, and
agreements of this Lease, and Tenant shall deliver to Landlord
promptly after execution, an executed copy of each sublease
and an agreement of said compliance by each subtenant. If an
event of default, as hereinafter defined, should occur while
the Premises or any part thereof are then sublet, Landlord, in
addition to any other remedies herein provided or provided by
law, may at its option collect directly from the subtenant all
rents and other sums becoming due to Tenant under the sublease
and apply the rent against any sums due to Landlord by Tenant
hereunder, and Tenant hereby authorizes and directs any such
subtenant to make payments of rent directly to Landlord upon
receipt of notice from Landlord. No direct collection by
Landlord from any subtenant will be construed to constitute a
novation or a release of Tenant from the further performance
of its obligations hereunder. Receipt by Landlord of rent from
any assignee, subtenant, or occupant of the Premises will not
be deemed a waiver of the covenants contained in this Lease or
a release of Tenant under the Lease. The receipt by Landlord
from any subtenant obligated to make payments of rent will be
a full and complete release, discharge, and acquittance to the
subtenant of its obligations to Tenant to the extent of any
such amount of rent so paid to Landlord. Landlord is
authorized and empowered, on behalf of Tenant to endorse the
name of Tenant upon any check, draft, or other instrument
payable to Tenant with respect to the Premises and evidencing
payment of rent, or any part thereof, and to receive and apply
the proceeds therefrom in accordance with the terms hereof.
(3) Landlord's consent to any sale, assignment, encumbrance,
subletting, occupation, lien, or other transfer shall not
release Tenant from any of Tenants obligations hereunder or be
deemed to be consent to any subsequent occurrence. Any sale,
assignment, encumbrance, subletting, occupation, lien or other
transfer of this Lease which does not comply with the
provisions of this Paragraph 11 shall be void.
(4) Any transfer of this Lease by merger, consolidation, or
liquidation or any change in ownership of or power to vote the
majority of outstanding voting stock of Tenant or, if Tenant
is a partnership, any withdrawal, replacement or substitution
of any partner or partners, either general or limited, shall
constitute an assignment whether the result of a single or
series of transactions, and shall be subject to Landlord's
approval under subparagraph 11 (a); provided, however, that
Landlord's approval shall not be required to any transfer of
this Lease by merger, consolidation, the sale of Tenant or any
portion thereof, a public offering, a change in the legal
structure of Tenant or any change in ownership of or power to
vote the majority of outstanding voting stock of Tenant,
whether the result of a single transaction or of a series of
transactions if following such transfer the net worth of
Tenant or its successor equals or exceeds the net worth of
Tenant immediately prior to such transfer (collectively,
"Permitted Transfers"). A Permitted Transfer shall not be
deemed a sublease, assignment or transfer of this Lease for
purposes of Special Stipulations 2 or 3 set forth on Exhibit
"G" hereto.
12. INSURANCE AND INDEMNIFICATION
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(1) Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord and any of its partners for
any injury or damage to any person or property in or about the
Premises by or from any cause whatsoever, excepting Landlord's
gross negligence or willful acts, and, without limiting the
generality of the foregoing, whether caused by water leakage
of any character from the roof, walls, basement, or other
portion of the Premises or the Building, or caused by gas,
fire, Acts of God, discharge of sprinklers, excessive heat or
cold, sewage, odors, noise, bursting or leakage of pipes or
plumbing fixtures, riot, strike, court order, governmental
body or authority, other tenants, or explosion of the Building
or the complex of which it may be a part or any, part thereof.
Tenant will hold Landlord harmless from damages due to the
interruption of Tenant's business caused by any damage
whatsoever.
(2) Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims or liability from any injury or
damage to any person or property whatever: (i) occurring in,
on, or about the Premises or any part thereof, and (ii)
occurring in, on, or about any facilities (including without
limitations, elevators, stairways, passageways or hallways),
the use of which Tenant may have in conjunction with other
tenants of the Building, when such injury or damage shall be
caused in part or in whole by the act, neglect, fault of, or
omission of any duty with respect to the same by Tenant, its
agents, servants, employees or any other person entering the
Premises with express or implied invitation of Tenant. Tenant
further agrees to indemnify and save harmless Landlord against
and from any and all claims by or on behalf of any person,
firm, or corporation, arising from the conduct or management
of any work or thing whatsoever done by Tenant in or about the
Premises, and will further indemnify and save Landlord
harmless against and from any and all claims arising from any
breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease, or arising from
any act or negligence of Tenant, or any of its agents,
contractors, servants, employees or licensees and from and
against all costs, counsel fees, expenses and liabilities
incurred in connection with any such claim or action or
proceeding brought thereon. Landlord hereby indemnifies and
agrees to save Tenant harmless against any and all liability,
loss, cost, damage or expense, including without limitation
court costs and reasonable attorney's fees, imposed on Tenant
and caused by the negligence or willful misconduct of
Landlord, its employees, agents or contractors, or occurring
in connection with any default of Landlord hereunder. All
property in the Building or Premises belonging to Tenant, its
agents, employees, or invitees shall be there at the risk of
Tenant. Tenant agrees to indemnify and save harmless Landlord
against claims for damage to, theft, misappropriation, or loss
of said property unless said claims are caused directly or
indirectly through Landlord's gross negligence. Furthermore,
and subject to the proviso set forth in the immediately
preceding sentence with respect to Landlord's gross
negligence, in case any action or proceeding shall be brought
against Landlord by reason of any claims or liability, Tenant
agrees to defend such action or proceedings at Tenant's sole
expense by counsel reasonably satisfactory to Landlord. The
provisions of this Paragraph 12 shall survive the expiration
or termination of this Lease with respect to any claims or
liability occurring prior to such expiration or termination.
(3) Tenant agrees to purchase at its own expense and to keep in
force during the term of this Lease the following policies of
insurance: (i) worker's compensation/employer's liability
insurance with a limit of $1,000,000; (ii) commercial general
liability insurance in respect of the Premises and the conduct
or operation of business therein, including personal injury
and property damage, with contractual liability endorsement,
with a combined single limit of not less than Three Million
Dollars ($3,000,000.00); and (iii)
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business auto liability insurance with a limit of $1,000,000
(stating any hired and non-owned autos, or any auto). Said
policies shall: (a) name Landlord as an additional insured and
insure Landlord's contingent liability under this Lease
(except for the worker's compensation policy, which shall
instead include a waiver of subrogation endorsement in favor
of Landlord), (b) be issued by an insurance company or
companies which is/are acceptable to Landlord and licensed to
do business in the State of Georgia, and (c) provide that said
insurance shall not be canceled unless thirty (30) days prior
written notice shall have been given to Landlord. Said policy
or policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the term of the Lease
and upon each renewal of said insurance. In addition, Landlord
may request a copy of any of the aforementioned insurance
policies not more than once per year. The purchase of such
insurance shall not release Tenant of any legal obligations
contained within this Lease.
13. WAIVER OF SUBROGATION
Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building; provided, however, that this release shall be applicable and in force
and effect only to the extent that such release shall be lawful at that time and
in any event only with respect to loss or damage occurring during such times as
the releasor's policies shall contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair said policies or prejudice
the right of the releasor to recover thereunder and then only to the extent of
the insurance proceeds payable under such policies. Each of Landlord and Tenant
agrees that it will require its insurance carriers to include in its policies
such a clause or endorsement. Failure to obtain such an endorsement shall not
release the waiver contained in this Lease.
14. SERVICES AND UTILITIES
(1) Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, corridors, and
restrooms, the windows in the Building, the mechanical,
plumbing, and electrical equipment serving the Building, and
the structure itself, in good order and condition except for
damage occasioned by the act of Tenant, which damage shall be
repaired by Landlord at Tenant's expense.
(2) Provided the Tenant shall not be in default hereunder and
subject to the provisions elsewhere herein contained,
including the Rules and Regulations of the Building, Landlord
agrees to furnish to the Premises during "Normal Business
Hours" (as hereinafter defined) or otherwise as stated herein:
(1) heating and air conditioning consistent with the type
of service provided in other first class office
buildings in the Atlanta metropolitan area, and
otherwise consistent with the building standard of
air volume described and identified in Paragraph 12
of Exhibits "C-3" and "E-2" attached hereto and by
this reference made a part hereof. Additional or
after-hours heating and air conditioning will be
available to Tenant at Tenant's sole cost and expense
at all times outside Normal Business Hours at the
building standard charge for such services as
determined from time to time by Landlord;
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(2) elevator service to Tenant's floor;
(3) water to the restrooms and drinking fountains;
(4) electric current in reasonably sufficient amounts for
normal business use (in amounts not to exceed either
in voltage, rate of capacity, use or overall load
that which is described on Exhibit "H" attached
hereto and by this reference made a part hereof),
including operation of building standard lighting and
general office machines of a type which require no
more than a 110 volt duplex outlet; and
(5) security services during the times and in a manner
that such services are in Landlord's judgment
customarily furnished in comparable office buildings
in the immediate market area, including a security
system for the Building, on-site guard(s) in the
Building, a key-card access system serving the
Building, and security cameras in the parking garage
serving the Building; and janitorial services on
weekdays in a manner that such services are in
Landlord's judgment customarily furnished in
comparable office buildings in the immediate market
area; and
(6) All building standard fluorescent lighting. All
incandescent and nonstandard fluorescent lights shall
be maintained at Tenant's expense;
(7) All temperature control devices and air diffusers;
and
(8) All Tenant entry door hardware, including locks,
hinges, and closers.
The services described in items (2), (3), (4), (6) and (7) above shall
be furnished twenty-four (24) hours per day, seven (7) days per week, subject to
the provisions of subparagraph (f) of this Paragraph 14.
(3) For the purpose of this Lease, normal business hours ("Normal
Business Hours") shall be from 8:00 am. to 6:00 p.m. Monday
through Friday and from 8:00 am. to 1:00 p.m. on Saturday,
excluding holidays established by Landlord. Notwithstanding
the foregoing, Tenant shall have access to the Premises
twenty-four (24) hours per day, seven (7) days per week.
(4) Landlord shall provide additional or after hours heating or
air conditioning at Tenant's request upon at least twenty-four
(24) hours advance notice, and Tenant shall pay the building
standard charge for such services as determined from time to
time by Landlord. As of the date of this Lease, the building
standard charge for additional or after hours heating or air
conditioning is $50.00 per hour per floor of the Building (or
portion thereof if Tenant occupies less than a full floor),
with such rate being subject to change at Landlord's
discretion. The obligation hereunder to make such additional
utilities available will be subject to the rules and
regulations of any municipal or any other governmental
authority regulating the business of providing such utility
service. Tenant agrees to keep closed all window coverings, if
any, when necessary because of the sun's position, and Tenant
also agrees at all times to cooperate fully with Landlord and
to abide by all regulations and requirements which Landlord
may prescribe for the proper functioning and protection of
said heating, ventilating, and air conditioning system. Except
with respect to the Telecommunications Equipment, Tenant will
not, without the prior written consent of Landlord (which
consent shall not be unreasonably withheld or delayed), use
any heat generating equipment, machines, or excess lighting in
the Premises which affect the amount of energy required to
maintain the temperature
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otherwise maintained by the heating, ventilating and air
conditioning system. In the event of such consent, Landlord
reserves the right to install supplementary air conditioning
equipment and the cost thereof, including the ongoing cost of
additional electricity, chilled water (if available), and/or
domestic water consumed as a result of the use of such
equipment, shall be paid by Tenant to Landlord upon demand.
The type, size and location of such supplemental air
conditioning equipment shall be determined or approved by
Landlord.
(5) Except with respect to the Telecommunications Equipment and
the Supplemental HVAC relating thereto (as more particularly
addressed in the Special Stipulations, including the
provisions of Paragraph 18 thereof requiring separate metering
for purposes of calculating Tenant's electrical usage in
excess of the Building standard), Tenant will not, without
written consent of Landlord, use within the Premises or the
Building any device or machine, in any number or combination
thereof or for any number of hours, which will in any way
cause Tenant to use electricity or water in excess of that
which Landlord has established as standard for the Building
for use of the Premises during Normal Business Hours for use
as general office space. Moreover, with respect to electrical
service (and except as contemplated by the first sentence of
this Paragraph), Tenant's use thereof shall not exceed, either
in voltage, rate of capacity, use beyond Normal Business
Hours, or overall load, that which Landlord deems to be
standard for the Building. For purposes hereof, "electrical
standard" for the Building is more fully described and
identified on Exhibit "H" attached hereto and by this
reference made a part hereof. Except as otherwise contemplated
by the provisions of Paragraphs 4, 5 and 10 of the Special
Stipulations, if Tenant in Landlord's judgment shall require
such additional water or electrical current, Tenant shall
first procure the consent of Landlord, which consent may not
be unreasonably withheld or delayed (and, if withheld with
respect to any request for additional electrical current,
shall be further governed by the provisions of Paragraph 10 of
the Special Stipulations), and Landlord may cause a special
meter to be installed so as to measure such additional
domestic water, chilled water (if available), or electrical
current. The cost of any such meters and of installation,
maintenance, and repair thereof shall be paid for by Tenant,
and Tenant agrees to pay Landlord or the utility company, as
the case may be, on demand, for the ongoing cost of
consumption of such additional water or electricity. In the
event that Landlord is responsible for reading the meter and
invoicing the Tenant, Landlord shall be entitled to charge the
Tenant the reasonable additional expenses for so doing.
(6) Landlord shall not be in default hereunder or be liable for
any damage directly or indirectly resulting from, nor shall
the rental herein reserved be abated by reason of, the (i)
installation, use, or interruption of use of any equipment in
connection with the furnishing of any of the foregoing
services or utilities, or the making of repairs or
improvements to the Premises or the Building, or (ii) failure
to furnish or delay in furnishing any such services or
utilities when such failure is caused by Acts of God or the
elements, strikes, governmental orders, accidents, or other
conditions beyond the reasonable control of the Landlord or by
the making of repairs or improvements to the Premises or to
the Building; unless, however, any matter described in the
foregoing Subparagraph (i) of this Subparagraph results from
the gross negligence or willful misconduct of Landlord, its
agents or employees, in which case Rent hereunder shall be
abated on a pro rata basis for any portion of the Premises
rendered untenantable as a result thereof should Building
services to the Premises (including, without limitation, water
and electricity serving the Premises) be interrupted for ten
(10) consecutive
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Business days.
(7) It shall be Tenant's responsibility and expense to install,
move, maintain, adjust, and repair its property and fixtures,
including but not limited to, its: signage, pictures, bulletin
boards, plaques, furniture, above standard flooring, filing
cabinets, computer cables. computer equipment, business
machines, draperies, blinds, kitchen appliances, special water
heaters, kitchen cabinets, private restroom fixtures, special
air conditioning or power conditioning equipment, locks for
furniture and filing cabinets, paging systems, modular
furniture components (including task lighting. flat wiring,
and power distribution cables), combination locks, specialty
electrical devices, exhaust fans, fire extinguishers, carpet
squares, and/or other furniture, fixtures, or equipment
installed by Tenant, or which were supplied, specified, or
requested by Tenant and installed by Landlord.
(8) Any sums payable under this Paragraph shall be considered
additional rent and Landlord shall have the same remedies for
a default in payment of such sums as for a default in the
payment of rent.
(9) Tenant may contract for additional or supplemental janitorial
services to the Premises (at Tenant's sole cost and expense)
so long as Tenant uses the same janitorial service engaged by
Landlord from time to time and provides Landlord with a copy
of the separate agreement entered into with such janitorial
service describing the scope and nature of services to be
rendered within the Premises.
15. ESTOPPEL CERTIFICATE
Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord a
certificate substantially in the form attached hereto as Exhibit "D" attached
hereto (as modified to accurately reflect the terms of this Lease) or in such is
the form as is reasonably requested by any mortgagee, beneficiary, purchaser or
prospective purchaser of the building or any interest thereon, indicating
thereon any exceptions thereto which may exist at that time. Failure of the
Tenant to execute and deliver such certificate shall constitute an acceptance of
the Premises and acknowledgment by Tenant that the statements included in
Exhibit "D" (as modified to accurately reflect the terms of this Lease) are true
and correct without exception.
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16. HOLDING OVER
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination or if any
of Tenant's property remains which Landlord has previously requested be removed,
then Landlord may serve written notice upon Tenant that such holding over
constitutes either (i) creation of a month to month tenancy, upon the terms and
conditions set forth in this Lease, or (ii) creation of a tenancy at sufferance,
in any case upon the terms and conditions set forth in this Lease; provided,
however, that the monthly rental [or daily rental under (ii)] shall, in addition
to all other sums which are to be paid by Tenant hereunder, whether or not as
additional rent, be equal to one hundred fifty percent (150%) of the rental
being paid monthly to Landlord under this Lease immediately prior to such
termination [prorated in the case of (ii) on the basis of a 365 day year for
each day Tenant remains in possession]. If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting from retention of possession by Tenant, including the loss of any
proposed subsequent tenant for any portion of the Premises. The provisions of
this paragraph shall not constitute a waiver by Landlord of any right of entry
as herein set forth; nor shall receipt of any rent or any other act in apparent
affirmance of the tenancy operate as a waiver of the right to terminate this
Lease for a breach of any of the terms, covenants, or obligations herein on
Tenant's part to be performed.
17. SUBORDINATION
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So long as Tenant is not disturbed from possession of the Premises
unless and until Tenant has defaulted hereunder and all applicable notice, grace
and cure periods have expired, this Lease shall be subject and subordinate
(without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination) at all times to: (a) all ground leases
or underlying leases which may now exist or hereafter be executed affecting the
Building, the Property, or any part thereof, and (b) the lien of any first
mortgage or deed to secure debt which may now exist or hereafter be executed in
any amount for which said Building, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items is specified as security,
together with all renewals, modifications, consolidations, participations,
replacements, and extensions of any such first mortgage or deed to secure debt.
Notwithstanding the foregoing, Landlord or the holder of any first mortgage or
deed to secure debt on the Building or the Property or any part thereof shall
have the right to subordinate or cause to be subordinated in whole or in part
any such ground leases or underlying leases or any such liens to this Lease (but
not in respect to priority of entitlement of insurance or condemnation
proceeds). In the event that any ground lease or underlying lease terminates for
any reason or any first mortgage or deed to secure debt is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such successor in interest.
Tenant covenants and agrees to execute and deliver, upon demand by Landlord or
the holder of any first mortgage or deed to secure debt on the Building or the
Property or any part thereof and in the form requested by Landlord or the holder
of any first mortgage or deed to secure debt on the Building or the Property or
any part thereof, any additional documents evidencing the priority of
subordination of this Lease with respect to any such ground leases or underlying
leases or the lien of any such mortgage or deed to secure debt, provided,
however, that Tenant receives from the holder of such mortgage or deed to secure
debt an agreement in form reasonably satisfactory to Tenant and said holder
that, so long as Tenant is not in default under this Lease, Tenant shall not be
disturbed in its possession of the Premises, and that any action or proceeding
in lieu thereof will not result in the cancellation or termination of this
Lease, and that in the event of any such foreclosure or sale, this Lease shall
continue in full force and effect, as a direct lease between Tenant and the then
owner of the Premises upon all terms, covenants and conditions herein. Tenant
hereby irrevocably appoints Landlord as attorney-in-fact of Tenant to execute,
deliver, and record any such documents in the name and on behalf of Tenant so
long as such nondisturbance assurances are contained therein. Landlord hereby
represents and warrants that the Property is not presently encumbered by a
mortgage or deed to secure debt.
18. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the Rules and
Regulations. Landlord shall not be responsible for the nonperformance by any
other tenant or occupant of the Building of any of the Rules and Regulations.
19. ENTRY BY LANDLORD
Landlord reserves and shall at all times upon reasonable verbal notice
to Tenant (except in case of emergency) have the right to enter the Premises to
inspect the same to determine if Tenant is complying with all terms and
provisions of this Lease, to perform Tenant's obligations under this Lease in
accordance with Paragraph 25 hereof, to supply janitorial service and any other
service to be provided by Landlord to Tenant hereunder (it being understood that
Tenant may elect to contract directly for its own janitorial service with
Landlord's approved vendor in accordance with Section 14(i) hereof) and, with
reasonable prior notice, to show said Premises to prospective purchasers,
mortgagees or tenants, to post notices of nonresponsibility, and to alter,
improve, or repair the Premises and any portion of the Building of which the
Premises are a part or to which access is conveniently made through the
Premises, without abatement of rent and may for that purpose erect, use, and
maintain scaffolding, pipes, conduits, and other necessary structures in and
through the Premises where reasonably required by the character of
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the work to be performed, provided that entrance to the Premises shall not be
blocked thereby, and further provided that the business of Tenant shall not be
interfered with unreasonably. In the case of any alteration, improvements or
repairs requiring access to or construction within the Fourth Floor Expansion
Premises, Landlord shall use reasonable efforts in designing such improvements
to avoid wherever possible the Fourth Floor Expansion Premises and, where
required, shall use reasonable efforts to minimize any impact on the Fourth
Floor Expansion Premises or any use by Tenant thereof. In connection with the
aforesaid and except for the gross negligence or willful misconduct of Landlord,
its agents or employees, Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of the aforesaid purposes, Tenant agrees that its doors shall
be keyed to Landlord's building standard master keying system and that Landlord
shall at all times have and retain master or pass keys with which to unlock all
of the doors in, upon, and about the Premises, and Landlord shall have the right
to use any and all means which Landlord may deem necessary or proper to open
said doors in an emergency, in order to obtain entry to any portion of the
Premises, and any entry to the Premises, or portions thereof obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction, actual or constructive, of Tenant from the
Premises or any portions thereof. Landlord shall also have the right at any
time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefor, to change the arrangement
and/or location of entrances or passageways, doors and doorways and corridors,
elevators, stairs, toilets, or other public parts of the Building.
20. INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant or an assignment of Tenant for the
benefit of creditors, or any action taken or suffered by Tenant under any
insolvency, bankruptcy, or reorganization act shall at Landlord's option
constitute a breach of this Lease by Tenant. In addition to other remedies for
default as set forth in Paragraph 21 hereof, upon the happening of any such
event or at any time thereafter, at Landlord's option, this Lease shall
terminate five (5) days after written notice of termination from Landlord to
Tenant. In no event shall this Lease be assigned or assignable by operation of
law or by voluntary or involuntary bankruptcy proceedings or otherwise and in no
event shall this Lease or any rights or privileges hereunder be an asset of
Tenant under any bankruptcy, insolvency, or reorganization proceedings.
21. DEFAULT
(1) The following events shall be deemed to be events of default
by Tenant under this Lease:
(1) Tenant shall fail to pay when or before due any sum
of money becoming due to be paid to Landlord
hereunder, whether such sum be any installment of the
Base Rent herein reserved, any other amount treated
as Rent hereunder, or any other payment or
reimbursement to Landlord required herein, whether or
not treated as additional Rent hereunder, and such
failure shall continue for a period of five (5)
business days from written notice from Landlord to
Tenant that such payment was due; provided, however,
that Landlord shall only be required to give such
written notice two (2) times in any twelve (12) month
period and any further failure by Tenant within such
twelve (12) month period to pay any such sum within
five (5) days of the date such payment is due shall
constitute an immediate default hereunder with no
requirement that Landlord give any such further
written notice; or
(2) Tenant shall fail to comply with any term, provision,
or covenant of this Lease
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other than by failing to pay when or before due any
sum of money becoming due to Landlord hereunder, and
shall not cure such failure within twenty (20) days
(forthwith, if the default involves a hazardous
condition) after written notice thereof to Tenant or,
in the event that any such cure is not capable of
being completed within such twenty (20) day period,
Tenant fails to commence its cure within such twenty
(20) day period or thereafter fails to pursue such
cure with diligence to completion within sixty (60)
days from the date of original receipt of written
notice of default; or
(3) Tenant shall fail to vacate the Premises immediately
upon termination of this Lease, by lapse of time or
otherwise, or upon termination of Tenant's right to
possession only; or
(4) The leasehold interest of Tenant shall be levied upon
under execution or be attached by process of law or
Tenant shall fail to contest diligently the validity
of any lien or claimed lien and give sufficient
security to Landlord to insure payment thereof or
shall fail to satisfy any judgment rendered thereon
and have the same released, and such default shall
continue for ten (10) days after written notice
thereof to Tenant; or
(5) Tenant shall fail to perform any of its obligations
under any agreement with Landlord other than this
Lease and such failure shall continue for a period of
twenty (20) days after written notice from Landlord
to Tenant; or
(6) Default by any Guarantor of this Lease of the terms
of its Guaranty, or the bankruptcy or insolvency of
any Guarantor.
(2) Upon the occurrence of any such events of default described in
this Paragraph or elsewhere in this Lease, Landlord shall have
the option to pursue any one or more of the following remedies
without any notice or demand whatsoever:
(1) Landlord may, at its election, terminate this Lease
or terminate Tenant's right to possession only,
without terminating the Lease;
(2) Upon any termination of this Lease, whether by lapse
of time or otherwise, or upon any termination of
Tenant's right to possession without termination of
the Lease, Tenant shall surrender possession and
vacate the Premises immediately and deliver
possession thereof to Landlord, and Tenant hereby
grants to Landlord full and free license to enter
into and upon the Premises in such event with or
without process of law and to repossess Landlord of
the Premises as of Landlord's former estate and to
expel or remove Tenant and any others who may be
occupying or within the Premises and to remove any
and all property therefrom, without being deemed in
any manner guilty of trespass, eviction, or forcible
entry or detainer, and without incurring any
liability for any damage resulting therefrom, Tenant
hereby waiving any right to claim damage for such
re-entry and expulsion, and without relinquishing
Landlord's right to rent or any other right given to
Landlord hereunder or by operation of law;
(3) Upon termination of this Lease, whether by lapse of
time or otherwise, Landlord shall be entitled to
recover as damages, all Rent and other sums due and
payable by Tenant on the date of termination, plus
the sum of: (i) an amount equal to the then present
value of the entire amount of the Rent calculated
using a discount
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rate equal to the average discount rate for auctioned
3-month Treasury Bills as of the date of termination
of this Lease, and other sums provided herein to be
paid by Tenant for the residue of the stated term
hereof, less the fair rental value of the Premises
for such residue (taking into account the time and
expense necessary to obtain a replacement tenant or
tenants, including expenses hereinafter described in
Paragraph 21(b)(4) relating to recovery of the
Premises, preparation for reletting and for reletting
itself), and (ii) the cost of performing any other
covenants which would have otherwise been performed
by Tenant.
(4) (i) Upon any termination of Tenant' s right to
possession only without termination of the Lease,
Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's signs and other evidences
of tenancy, and take and hold possession thereof as
provided in Paragraph 21(b)(2) above, without such
entry and possession terminating the Lease or
releasing Tenant in whole or in part from any
obligation, including Tenant's obligation to pay the
Rent, hereunder for the full term. In any such case,
Tenant shall pay forthwith to Landlord the Rent due
from month to month as same becomes due for the
residue of the stated term hereof plus any other sums
provided herein to be paid by Tenant,
(ii) Landlord shall use commercially reasonable
efforts to relet the Premises or any part thereof for such
Rent and upon such terms as Landlord in its sole discretion
shall determine (including the right to relet the Premises for
a greater or lesser term than that remaining under this Lease,
the right to relet the Premise as a part of a larger area, and
the right to change the character or use made of the Premises)
and Landlord shall not be required to accept any tenant
offered by Tenant or to observe any instructions given by
Tenant about such reletting. In any such case, Landlord may
make repairs, alterations and additions in or to the Premises,
and redecorate the same to the extent Landlord deems necessary
or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Landlord's expenses of reletting
including, without limitation, any broker's commission
incurred by Landlord. If the consideration collected by
Landlord upon any such reletting plus any sums previously
collected from Tenant are not sufficient to pay the full
amount of all Rent, together with the costs of any repairs,
alterations, additions, redecorating, and Landlord's expenses
of reletting and the collection of the rent accruing therefrom
(including reasonable attorney's fees and reasonable broker's
commissions,) Tenant shall pay to Landlord the amount of such
deficiency upon demand and Tenant agrees that Landlord may
file suit to recover any sums failing due under this section
from time to time;
(5) Landlord may, at Landlord's option, enter into and
upon the Premises, with or without process of law, if
Landlord determines in its sole discretion that
Tenant is not acting within a commercially reasonable
time to maintain, repair, or replace anything for
which Tenant is responsible hereunder and correct the
same, without being deemed in any manner guilty of
trespass, eviction or forcible entry and detainer,
and without incurring any liability for any damage
resulting therefrom, and Tenant agrees to reimburse
Landlord, on demand, as additional Rent for any
expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this
Lease;
(6) Any and all property which may be removed from the
Premises by Landlord pursuant to the authority of the
Lease or by law, to which Tenant is or may be
entitled, may be handled, removed, and stored, as the
case may be, by or at the
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direction of Landlord at the risk, cost and expense
of Tenant, and Landlord shall in no event be
responsible for the value, preservation, or
safekeeping thereof. Tenant shall pay to Landlord,
upon demand, any and all expenses incurred in such
removal and all storage charges against such property
so long as the same shall be in Landlord's possession
or under Landlord's control. Any such property of
Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises
shall, at Landlord's option, be deemed conveyed by
Tenant to Landlord under this Lease as by a xxxx of
sale without further payment or credit by Landlord to
Tenant.
(3) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any
other remedies provided by law (all such remedies being
cumulative) nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any Rent due to Landlord
hereunder or any damages accruing to Landlord by reason of the
violation of any of the terms, provisions, and covenants
herein contained. No act or thing done by Landlord or its
agents during the term hereby granted shall be deemed a
termination of this Lease or an acceptance of the surrender of
the Premises, and no agreement to terminate this Lease or
accept a surrender of the Premises shall be valid unless in
writing signed by Landlord. Landlord's acceptance of the
payment of Rent or other payments hereunder after the
occurrence of an event of default shall not be construed as a
waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of
the remedies herein provided upon an event of default shall
not be deemed or constitute a waiver of such default or of
Landlord's right to enforce any such remedies with respect to
such default or any subsequent default. If, on account of any
breach or default by Tenant in Tenant's obligations under the
terms and conditions of this Lease, it shall become necessary
or appropriate for Landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's
rights or remedies hereunder, Tenant agrees to pay any
reasonable attorney's fees so incurred.
(4) Without limiting the foregoing, Tenant hereby appoints and
designates the Premises as a proper place for service of
process upon Tenant and agrees that service of process upon
any office manager or corporate officer of Tenant within the
Premises shall constitute personal service of such process
upon Tenant (provided, however, Landlord does not hereby waive
the right to serve Tenant with process by any other lawful
means) provided that a copy of such process is also mailed to
Tenant at the Premises by U.S. Certified Mail, and Tenant
hereby further expressly waives any right to trial by jury.
22. DAMAGE BY FIRE, ETC.
(1) If the Building, improvements, or Premises are rendered
partially or wholly untenantable by fire or other casualty,
and if such damage cannot, in Landlord's reasonable
estimation, be materially restored within one hundred twenty
(120) days of such damage, then Landlord may, at its sole
option, terminate this Lease as of the date of such fire or
casualty. Landlord shall exercise its option provided herein
by written notice to Tenant within sixty (60) days of such
fire or other casualty. For purposes hereof, the Building,
improvements, or Premises shall be deemed "materially
restored" if they are in such condition as would not prevent
or materially interfere with Tenant's use of the Premises for
the purpose for which it was then being used.
(2) If this Lease is not terminated pursuant to Paragraph 22(a),
then Landlord shall proceed with all due diligence to repair
and restore the Building and the Premises, at Landlord's
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cost, (except that Landlord may elect not to rebuild if such
damage occurs during the last year of the term exclusive of
any option which is unexercised at the date of such damage).
Any restoration of the Premises by Landlord shall not include
replacement of furniture, equipment or other items of Tenant's
property.
(3) If this Lease shall be terminated pursuant to this Paragraph
22(a), the term of this Lease shall end on the date of such
damage as if that date had been originally fixed in this Lease
for the expiration of the term hereof. If this Lease shall not
be terminated by Landlord pursuant to this Paragraph 22(a) and
in the event that Landlord should fail to complete such
repairs and material restoration within one hundred eighty
(180) days after the date of such damage, Tenant may, at its
option and as its sole remedy, terminate this Lease by
delivering written notice to Landlord, whereupon the Lease
shall end on the date of such notice as if the date of such
notice were the date originally fixed in this Lease for the
expiration of the term hereof, provided, however, that if
construction is delayed because of changes, deletions, or
additions in construction requested by Tenant, strikes,
lockouts, casualties, Acts of God, war, material or labor
shortages, governmental regulation or control or other causes
beyond the reasonable control of Landlord, the period for
restoration, repair or rebuilding shall be extended for the
amount of time Landlord is so delayed.
(4) Tenant agrees that during any period of restoration or repair
of the Premises, Tenant shall continue the operation of
Tenant's business within the Premises to the extent
practicable. During the period from the date of the damage or
the date all or a portion of the Premises is rendered
untenantable until the date that the untenantable portion of
the Premises is materially restored, the Rent shall be reduced
to the extent of the proportion of the Premises which is
untenantable, however, there shall be no abatement of other
sums to be paid by Tenant to Landlord as required by this
Lease.
(5) In no event shall Landlord be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and
other improvements constructed or installed by Tenant pursuant
to the provisions of Paragraph 8 hereof or any of the
improvements constructed or installed by Tenant pursuant to
the terms of the Fourth Floor Expansion Premises Lease
Improvement Agreement. Landlord has the right but not the
obligation to rebuild, repair, or replace at Tenant's expense
so much of the partitions, fixtures, additions and other
improvements as may be necessary to ensure that the Premises
are materially restored. Any insurance which may be carried by
Landlord or Tenant against loss or damage to the Building or
Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control except that
Landlords insurance may be subject to control by (i) the
holder or holders of any indebtedness secured by a mortgage or
deed to secure debt covering any interest of Landlord in the
Premises, the Building, or the Property, and/or (ii) the
ground lessor of the Property.
(6) Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed
to secure debt covering the Premises, Building, or Property or
the ground lessor of the Property requests that any insurance
proceeds be paid to it, then Landlord shall have the right to
terminate the Lease by delivering written notice of
termination to Tenant within fifteen (15) days after such
requirement is made by any such person, whereupon the Lease
shall end on the date of such damage as if the date of such
damage were the date originally fixed in this Lease for the
expiration of the Lease Term.
(7) In the event of any damage or destruction to the Building or
the Premises by any peril
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covered by the provisions of this Paragraph 22, Tenant shall,
upon notice from Landlord, remove forthwith, at its sole cost
and expense, all or such portion of the property belonging to
the Tenant or its licensees from all of the Building or the
Premises, or such portion, as Landlord shall request. Tenant
hereby indemnifies and holds Landlord harmless from any loss,
liability, costs, and expenses, including attorney's fees,
arising out of any claim or damage or injury as a result of
any alleged failure to secure the Premises properly prior to
such removal and/or during such removal, except for loss,
liability, cost or expense caused by the negligence of
Landlord, its agents or employees.
23. CONDEMNATION
(1) If any substantial part of the Premises, Building or Property
should be taken for any public or quasi-public use under
governmental law, ordinance, or regulation, or by right of
eminent domain, or by private purchase in lieu thereof and the
taking would prevent or materially interfere with Tenant's
then existing Permitted Use of the Premises, this Lease shall
terminate effective when the physical taking shall occur in
the same manner as if the date of such taking were the date
originally fixed in this Lease for the expiration of the term
hereof.
(2) If part of the Premises, Building, or Property shall be taken
for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, and this Lease is not
terminated as provided in Paragraph 23(a), this Lease shall
not terminate but the Rent payable hereunder during the
unexpired portion of this Lease shall be reduced to such
extent, if any, as may be fair and reasonable under all of the
circumstances, and Landlord shall undertake to restore the
Building and Premises to a condition suitable for Tenant's
use, as near to the condition thereof prior to such taking as
is reasonably feasible under all circumstances.
(3) Tenants shall not share in any condemnation award or payment
in lieu thereof or in any award for damages resulting from any
grade change of adjacent streets, the same being hereby
assigned to Landlord by Tenant; provided, however, that Tenant
may separately claim and receive from the condemning
authority, if legally payable, compensation for Tenant's
removal and relocation costs and for Tenant's loss of business
and/or business interruption, except that no such claim shall
diminish or otherwise adversely affect Landlord's award or the
awards of any and all ground and underlying lessors and
mortgages.
(4) Notwithstanding anything to the contrary contained in this
Paragraph 23, if the temporary use or occupancy of any part of
the Premises shall be taken or appropriated under power of
eminent domain during the term of this Lease, this Lease shall
be and remain unaffected by such taking or appropriation and
Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the term of this Lease. In the
event of any such temporary appropriation or taking, Tenant
shall be entitled to receive that portion of any award which
represents compensation for the use of or occupancy of the
Premises during the term of this Lease, and Landlord shall be
entitled to receive that portion of any award which represents
the cost of restoration of the Premises and the use and
occupancy of the Premises after the end of the Lease Term.
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24. SALE BY LANDLORD
The covenants and obligations of Landlord hereunder shall be binding
upon the Landlord named herein and its successors and assigns, only with respect
to their respective periods of time as Landlord hereunder. In the event of a
sale or conveyance by Landlord of the Building, the same shall operate to
release Landlord from any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of Tenant, and in such
event Tenant agrees to look solely to the successor in interest of Landlord in
and to this Lease. Tenant agrees to attorn to the purchaser or assignee in any
such sale.
25. RIGHT OF LANDLORD TO PERFORM
All covenants and agreements to be performed by the Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent except as expressly provided herein.
If the Tenant shall fail to pay any sum of money, other than Rent, required to
be paid by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by the Landlord, the Landlord may, but shall not be obligated so
to do, and without waiving or releasing the Tenant from any obligations of the
Tenant, make any such payment or perform any such act on the Tenant's part to be
made or performed as in this Lease provided. All sums so paid by the Landlord
and all necessary incidental costs, together with interest thereon at the Agreed
Interest Rate from the date of such payments by the Landlord, shall be payable
as additional Rent to the Landlord on demand, and the Tenant covenants to pay
any such sums, and the Landlord shall have, in addition to any other right or
remedy of the Landlord, the same rights and remedies in the event of nonpayment
thereof by the Tenant as in the case of default by the Tenant in the payment of
the Rent.
26. SURRENDER OF PREMISES
(1) At the end of the term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver
up to the Landlord possession of the Premises, together with
all improvements or additions (other than improvements
specifically authorized or required to be removed by Tenant
pursuant to the terms of this Lease and the Special
Stipulations attached hereto) upon or belonging to the same,
by whomsoever made, in the same condition as received, or
first installed, reasonable wear and tear, damage by fire,
earthquake, Act of God, or the elements alone excepted. Tenant
may, upon the termination of this Lease, remove all movable
furniture and equipment belonging to Tenant, at Tenant's sole
cost, repairing any damage caused by such removal. Property
not so removed shall be deemed abandoned by the Tenant, and
title to the same shall thereupon pass to Landlord. Upon
request by Landlord, unless otherwise agreed to in writing by
Landlord, Tenant shall remove, at Tenant's sole cost, any or
all permanent improvements or additions to the Premises
installed by or at the expense of Tenant and all movable
furniture and equipment belonging to Tenant which may be left
by Tenant and repair any damage resulting from such removal.
(2) The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and
shall, at the option of the Landlord, either terminate all or
any existing subleases or subtenancies, or operate as an
assignment to Landlord of any or all such subleases or
subtenancies.
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27. WAIVER
If either Landlord or Tenant waives the performance of any term,
covenant or condition contained in this Lease, such waiver shall not be deemed
to be a waiver of any subsequent break or nonperformance of the same or any
other term, covenant, or condition contained herein. Furthermore, the acceptance
of Rent by Landlord shall not constitute a waiver of any preceding breach by
Tenant of any term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time Landlord accepted such
Rent. Failure by Landlord to enforce any of the terms, covenants, or conditions
of this Lease for any length of time shall not be deemed to waive or to decrease
the right of Landlord to insist thereafter upon strict performance by Tenant.
Waiver by Landlord of any term, covenant, or condition contained in this Lease
may only be made by a written document signed by Landlord.
28. NOTICES
All notices and demands which may or are required to be given by either
party to the other hereunder shall be in writing and shall be deemed given when
delivered or mailed as required below. All notices and demands by one party to
the other shall be either delivered to the Premises or sent by a commercial
interstate courier service offering proof of delivery or by United States
Certified or Registered mail, postage and fees prepaid. Notices and demands by
Landlord to Tenant shall be addressed to the Tenant at the Premises in care of
Xx. Xxx Xxxxxxxxxx, with a copy to Xxxx Xxxxxxx, Esq., 0000 Xxxxxxx Xxxx, Xxxxx
X-000, Xxxxxxx, Xxxxxxx 00000, or to such other place as the Tenant may from
time to time designate in a notice to the Landlord. Notices and demands by
Tenant to the Landlord shall be addressed to the Landlord at Landlord's Address,
or to such other firm or to such other place as Landlord may from time to time
designate in a notice to the Tenant. If requested by Landlord, Tenant shall send
copies of any notices and demands by Tenant to the holder or holders of any
mortgage or deed to secure debt on the Property or any part thereof.
29. CERTAIN RIGHTS RESERVED TO THE LANDLORD
The Landlord may enter upon the Premises and/or may exercise any or all
of the following rights hereby reserved without being deemed guilty of an
eviction or disturbance of the Tenant's use or possession and without being
liable in any manner to the Tenant and without abatement of Rent or affecting
any of the Tenant's obligations hereunder:
(1) To change the name or street address of the Building;
(2) To install and maintain a sign or signs on the exterior of the
Building;
(3) To designate all sources furnishing sign painting and
lettering, food and beverage vending services, towels, carpet
cleaning service, toilet supplies, lamps and bulbs used on the
Premises;
(4) To retain at all times pass keys to the Premises;
(5) To grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building; provided,
however, that the granting of any such exclusive rights shall
in no way limit or restrict Tenant's right to use and enjoy
the Premises or the rights expressly granted to Tenant under
this Lease;
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(6) To close the Building after regular working hours and on the
legal or nationally observed holidays subject, however, to
Tenants right of admittance, under such reasonable regulations
as Landlord may prescribe from time to time, which may
include, by way of example but not of limitation, that persons
entering or leaving the Building identify themselves to a
watchman by registration or otherwise and that said persons
establish their right to enter or leave the Building; and
(7) To take any and all measures, including inspections, repairs,
alterations, decorations, additions, and improvements to the
Premises or the Building, and identification and admittance
procedures for access to the Building as may be necessary or
desirable for the safety, protection, preservation or security
of the Premises or the Building or the Landlord's interests,
or as Landlord may deem necessary or desirable in the
operation of the Building.
30. ABANDONMENT
If Tenant shall be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall, at the
option of Landlord, be deemed to be abandoned and title thereto shall thereupon
pass to Landlord, in addition to other remedies available to Landlord for
Tenants defaults under this Lease.
31. SUCCESSORS AND ASSIGNS
Subject to the provisions of Paragraph 11 hereof, the terms, covenants,
and conditions contained herein shall be binding upon and inure to the benefit
of the heirs, successors, executors, administrators, and assigns of the parties
hereto.
32. ATTORNEY'S FEES
In the event that any action or proceeding is brought to enforce any
term, covenant, or condition of this Lease on the part of Landlord or Tenant,
the prevailing party in such litigation shall be entitled to reasonable
attorney's fees to be fixed by the court in such action or proceeding.
33. SECURITY DEPOSIT
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(1) Tenant shall pay to Landlord upon execution of this Lease a
Security Deposit in the amount of $372,227.00 for the faithful
performance of all terms, covenants, and conditions of this
Lease. Tenant agrees that Landlord may apply said Security
Deposit to remedy any failure by Tenant to repair or maintain
the Premises or to perform any other terms, covenants, and
conditions contained herein. If Tenant has kept and performed
all terms, covenants, and conditions of this Lease during the
term hereof and the Security Deposit has not been applied to
Rent as provided below in this Paragraph, Landlord will on the
termination hereof, promptly return said sum to Tenant or the
last permitted assignee of Tenant's interest hereunder at the
expiration of the Lease term. Should Landlord use any portion
of said sum to cure any default by Tenant hereunder, Tenant
shall forthwith replenish said sum to such original amount.
Landlord shall not be required to keep the Security Deposit
separate from its general funds. Tenant shall be entitled to
interest on any such deposit in an amount equal to one-half of
the interest accruing thereon from time to time. Landlord
shall deposit the Security Deposit in a money market account
with such depository as Landlord and Tenant may mutually agree
upon from time to time. Tenant's share of interest on the
Security Deposit shall accrue and be added to the Security
Deposit, and shall be disbursed from time to time at the time
and in the manner the Security Deposit is disbursed in
accordance with the terms of this Paragraph. Landlord's share
of such interest shall be paid to Landlord from time to time
as Landlord may direct and shall be retained by Landlord (not
as security, but for its own account) in consideration for the
execution of this Lease and the administration of the account
in which the Security Deposit is deposited. Upon the
occurrence of any events of default described in Paragraph 21
of this Lease (subject to any applicable notice, grace and
cure periods), the Security Deposit shall become due and
payable to Landlord for application of the proceeds thereof
against Tenant's obligations hereunder in such manner as
Landlord may direct.
(2) Subject to other terms and conditions contained in this Lease,
if the Building is conveyed by Landlord voluntarily or
involuntarily, said Security Deposit shall be turned over to
(or credited to the account of) the Landlord's grantee or
successor and, if so, Tenant hereby releases Landlord from any
and all liability with respect to said deposit and its
application or return. Should Landlord fail or refuse to so
transfer or credit any voluntary or involuntary transferee of
the Property with the Security Deposit (or any portion of the
Security Deposit then held by Landlord), Tenant shall
nonetheless be entitled to a credit against Rent accruing from
time to time hereunder (in the amount of any such undisbursed
portion of the Security Deposit so held by Landlord) at the
time and in the manner the Security Deposit is required to be
applied toward payment of Rent under this Paragraph, until
such Security Deposit is so applied in full.
(3) A portion of the Security Deposit in the amount of $279,170.00
(the "Principal Deposit") shall be held by Landlord as
hereinabove provided until such time as Tenant has established
to the reasonable satisfaction of Landlord that Tenant has (i)
actually received $10,000,000.00 or more in cash from the
issuance and sale of stock in Tenant as a result of one or
more public offerings in a recognized stock exchange, or
through the private placement and sale of stock in Tenant, and
(ii) taking into account receipt of such $10,000,000.00 in
cash, Tenant has a net worth of not less than $10,000,000.00
according to generally accepted accounting principles
consistently applied. At such time as Tenant has satisfied
each of the foregoing conditions (but not otherwise), Landlord
shall thereafter apply the Principal Deposit against Rent and
other charges due and payable under this Lease at the time the
same become due and payable hereunder. At such time as the
Principal Deposit has been fully applied against Rent or other
obligations of Tenant hereunder, Tenant shall resume payment
of Rent and such other
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charges at the time and in the manner the same become due and
payable as contemplated by the terms and conditions of this
Lease.
(4) The remaining portion of the Security Deposit (other than the
Principal Deposit) in the amount of $93,057.00 (the
"Additional Deposit") shall be held by Landlord as hereinabove
provided until the third anniversary of the Commencement Date,
at which time Landlord shall apply the Additional Deposit
against Rent and other charges due and payable under the Lease
at the time the same become due and payable hereunder so long
as no event of default has occurred and is continuing under
this Lease. In addition, in the event that the conditions
described in the foregoing subparagraphs 33(c)(i) and (ii) are
satisfied as a result of the issuance and sale of stock in
Tenant in connection with one or more initial public offerings
in a recognized stock exchange (but not from the private sale
of stock pursuant to a private placement memorandum, or
otherwise) on or before the third anniversary of the
Commencement Date, Landlord shall thereafter apply the
Additional Deposit against Rent and other charges due and
payable under this Lease at the time the same become due and
payable hereunder. If, and only if, at the time Landlord is
required under this subparagraph to apply the Additional
Deposit against Rent or other Tenant obligations Landlord is
at the same time then required to apply the Principal Deposit
against such obligations (or vice versa, as the case may be),
Landlord is nonetheless authorized and directed to hold the
Additional Deposit and apply the same against Rent and other
obligations at such time as the Principal Deposit has been
fully applied thereto. At such time as the Additional Deposit
has been fully applied against Rent or other obligations of
Tenant hereunder, Tenant shall resume payment of Rent and such
other charges at the time and in the manner the same become
due and payable as contemplated by the terms and conditions of
this Lease.
34. FINANCIAL STATEMENTS
Within ten (10) days following Landlord's request therefor, Tenant
shall provide to Landlord copies of (a) if available, the most recent fiscal
year financial statements for Tenant and any Guarantors of this Lease, as
audited by a certified public accountant, and (b) the most recent fiscal quarter
financial statements for Tenant and any Guarantors of this Lease, as certified,
respectively, by Tenant and each such Guarantor. The financial statements shall
include, but not necessarily be limited to, a balance sheet, statements of
income and retained earnings, and a statement of source and uses of funds. All
such statements shall be prepared in accordance with the generally accepted
accounting principles.
35. TENANT AUTHORITY
If Tenant signs as a corporation or partnership, each of the persons
executing this Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing corporation or partnership, as the case
may be, that Tenant has and is qualified to do business in Georgia, that the
corporation or partnership has full right and authority to enter into this
Lease, and that each and all of the persons signing on behalf of the corporation
or partnership are authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing covenants and warranties.
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36. MORTGAGEE AND GROUND LESSOR APPROVALS
The approval or consent of Landlord shall not be deemed to have been
unreasonably withheld for purposes of any provisions of this Lease requiring
such consent if any mortgagee (which shall include the holder of any deed to
secure debt ) of the Premises, Building, or Property or any portion thereof, or
the ground lessor of the Property, shall refuse or withhold its approval or
consent thereto. Any requirement of Landlord pursuant to this Lease which is
imposed pursuant to the direction of any such mortgagee or ground lessor shall
be deemed to have been reasonably imposed by Landlord if made in good faith.
37. MISCELLANEOUS
(1) Time is of the essence of this Lease and all of its
provisions. Periods of time expressed in days for performance,
unless otherwise specified, shall mean calendar days.
(2) This Lease shall in all respects be governed by the laws of
the State of Georgia.
(3) This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous
negotiations. There have been no representations made by the
Landlord or any representative or agent of Landlord, or
understandings made between the parties other than those set
forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument by the parties hereto.
(4) All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the term of this
Lease shall survive the expiration or earlier termination of
the term hereof.
(5) If any clause, phrase, provision, or portion of this Lease or
the application thereof to any person or circumstance shall be
invalid or unenforceable under applicable law, such event
shall not affect, impair, or render invalid or unenforceable
the remainder of this Lease or any other clause, phrase,
provision or portion hereof, nor shall it affect the
application of any other clause, phrase, provision, or portion
hereof to other persons or circumstances, and it is also the
intention of the parties to this Lease that in lieu of each
such clause, phrase, provision, or portion of this Lease that
is invalid or unenforceable, there be added as a part of this
Lease contract a clause, phrase, provision or portion as
similar in terms to such invalid or unenforceable clause,
phrase, provision or portion as may be possible and be valid
and enforceable.
(6) Whenever a period of time is herein described for action to be
taken by Landlord, the Landlord shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to
causes of any kind whatsoever which are beyond the control of
Landlord.
(7) Notwithstanding any other provision of this Lease to the
contrary, if the Commencement Date hereof shall not have
occurred before twelve (12) months following the date hereof,
this Lease shall be null and void and neither party shall have
any liability or obligation to the other hereunder. The
purpose and intent of this provision is to avoid the
application of the rule against perpetuities to this Lease.
(8) Anything contained in the foregoing provisions of this section
to the contrary notwithstanding, neither Tenant nor any other
person having an interest in the possession, use, occupancy,
or utilization of the Premises shall enter into any lease,
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sublease, license, concession, or other agreement for use,
occupancy, or utilization of space in the Premises which
provides for rental or other payment for such use, occupancy,
or utilization based, in whole or in part, on the net income
or profits derived by any person from the Premises leased,
used, occupied or utilized (other than an amount based on a
fixed percentage or percentages of receipts of sales), and any
such proposed lease, sublease, license, concession, or other
agreement shall be absolutely void and ineffective as a
conveyance of any right of interest in the possession, use,
occupancy, or utilization of any part of the Premises.
38. LANDLORD'S LIEN'S
(1) In addition to any statutory lien for Rent in Landlord's
favor, Landlord shall have and Tenant hereby grants to
Landlord a continuing security interest for all rentals and
other sums of money becoming due hereafter from Tenant, upon
all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper, and other personal
property of Tenant situated on the Premises, and following any
Tenant default such property shall not be removed therefrom
without the consent of Landlord until all arrearages in Rent
as well as any and all other sums of money then due to
Landlord hereunder shall first have been paid and discharged.
So long as Tenant is not in default under this Lease beyond
any applicable notice, grace or cure period hereunder,
Landlord shall agree to subordinate its security interest
contained herein in favor of security interests granted by
Tenant for purposes of financing personal property located
within the Premises.
(2) In the event of a default under this Lease, Landlord shall
have, in addition to any other remedies provided herein or by
law, all rights and remedies under the Uniform Commercial
Code, including without limitation the right to sell the
property described in this Paragraph 38 at public or private
sale upon five (5) days' notice to Tenant. Tenant hereby
agrees that this Lease shall constitute a security agreement
and further agrees to execute such financing statements and
other instruments necessary or desirable in Landlord's
discretion to perfect the security interest hereby created.
Any statutory lien for Rent is not hereby waived, the express
contractual lien herein granted being in addition and
supplementary thereto.
39. QUIET ENJOYMENT
Landlord represents and warrants that it has full right and authority
to enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold, and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord or any party claiming by, through or under Landlord,
and Landlord shall defend Tenant's quiet enjoyment of the Premises, subject to
the terms and provisions of this Lease. In the event this Lease is a sublease,
then Tenant agrees to take the Premises subject to the provisions of the prior
leases. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
40. LANDLORD'S LIABILITY
Any liability of Landlord hereunder shall be enforceable only out of
Landlord's interest in the Building or Property and in no event out of the
separate assets of any constituent partner of Landlord. No holder or beneficiary
of any mortgage or deed to secure debt on any part of the Property shall have
any liability to Tenant hereunder for any default of Landlord.
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41. NO ESTATE
This contract shall create the relationship of Landlord and Tenant, and
no estate shall pass out of Landlord. Tenant has only a usufruct, not subject to
levy and sale and not assignable by Tenant, except as provided for herein and in
compliance herewith.
42. [INTENTIONALLY OMITTED]
43. LEASE EFFECTIVE DATE
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution by both Landlord and Tenant.
44. HAZARDOUS MATERIALS
Tenant shall not cause or permit the escape, disposal, or release of
any biologically or chemically active or other hazardous substances or materials
in, on, or about the Premises. Neither Tenant nor Landlord shall allow the
storage or use of such substances or materials in, on, or about the Premises in
any manner not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials, nor allow to
be brought into the Premises any such materials or substances except to use in
the ordinary course of Tenant's business, and then only after written notice has
been given to Landlord of the identity of such substances or materials
excepting, however, ordinary office and cleaning supplies. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials in, on, or about the Premises, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as additional charges if such requirement applies to Tenant's use and occupancy
of the Premises. In addition, Tenant shall execute affidavits, representations,
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances or materials
introduced by Tenant on the Premises. In all events, Tenant shall indemnify
Landlord in the manner elsewhere provided in this Lease from any release of
hazardous materials in, on, or about the Premises occurring while Tenant is in
possession, or elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of the
Lease term.
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45. BROKERAGE PROVISIONS.
Landlord and Tenant represent and warrant that no broker, commission
agent, real estate agent or salesperson other than Broker has participated in
the negotiation of this Lease, its procurement or the procurement of Landlord or
Tenant. Landlord's Broker has represented Landlord in this transaction and shall
be paid a commission by Landlord pursuant to a separate, written agreement.
Tenant's Broker has represented Tenant in this transaction and shall be paid a
commission by Landlord pursuant to a separate, written agreement. Landlord and
Tenant hereby acknowledge and agree that no person, firm, corporation or entity
other than Broker is or shall be entitled to the payment of any fee, commission,
compensation or other form of remuneration in connection herewith in any manner.
Landlord shall and does hereby indemnify and agree to hold Tenant harmless from
and against any claims, demands, actions and judgments of any and all brokers,
agents and other intermediaries alleging a commission, fee or other payment to
be owing by reason of Landlord's dealings, negotiations or communications in
connection with this Lease or the demise of the Premises. Likewise, Tenant shall
and does hereby indemnify and agree to hold Landlord harmless from and against
any claims, demands, actions and judgments of any and all brokers (other than
Broker), agents and other intermediaries alleging a commission, fee or other
payment to be owing by reason of Tenant's dealings, negotiations or
communications in connection with this Lease or the demise of the Premises. The
terms of this Paragraph 45 shall survive the expiration or other termination of
this Lease.
46. HEALTH/FITNESS FACILITY
Landlord and Tenant acknowledge and agree that Landlord has constructed
and operates in the Project a health and fitness facility (the "Health/Fitness
Facility"), and that the cost of maintaining and operating the Health/Fitness
Facility shall be included as a part of Operating Costs. If at any time during
the term of this Lease Landlord makes membership in the Health/Fitness Facility
available to tenants of the Project for a fee such that the membership fees
collected are sufficient to cover the expense of operating and maintaining the
Health/Fitness Facility, then such operation and maintenance costs shall not be
included as part of Operating Costs. In addition, only the amount by which the
operating and maintenance expenses of the Health/Fitness Facility exceed the
revenues derived therefrom shall be included in Operating Costs. In any event,
Landlord shall at all times have the right to require, as a condition to access
to the Health/Fitness Facility, that each individual entering the Health/Fitness
Facility sign an appropriate form documenting a waiver of claims against
Landlord and the operator of the Health/Fitness Facility.
47. SPECIAL STIPULATIONS
In the event of a conflict between the provisions set forth in the body
of this Lease and the provisions of the Special Stipulations, if any, the terms
of the Special Stipulations shall control.
48. PREPAID BASE RENT
Landlord has received a prepayment of Base Rent from Tenant in the
amount of $97,953.94 with respect to the Initial Premises. Such Base Rent
Prepayment shall be applied to Base Rent payments due from Tenant under the
Lease, commencing on the Commencement Date and on the first day of each
succeeding month thereafter until exhausted, at which time Tenant shall resume
making payments of Base Rent to Landlord as set forth in Paragraph 5 hereof. In
the event that the remaining portion of such prepaid Base Rent is insufficient
to pay the full amount of Base Rent due to Landlord in any month, Tenant shall
pay the remainder upon the due date thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal as of the day and year first above written.
LANDLORD: TENANT:
000 XXXXXXXX XXXXXX ASSOCIATES, a INTERLAND, INC.,
Georgia general partnership a Georgia corporation
By: Lennar Marietta Holdings, Inc., a Georgia By: /s/ Xxx Xxxxxxxxxx
corporation, managing general partner --------------------------------
Name: Xxx Xxxxxxxxxx
By: /s/ Xxxx X. Xxxxxxxx --------------------------
------------------------------------- Title: President
Name: Xxxx X. Xxxxxxxx -------------------------
-------------------------------
Title: Vice President
-----------------------------
(Affix Corporate Seal) (Affix Corporate Seal)
Date: September 27, 1999 Date: September 24, 1999
---------------------------------------- ------------------------------
ATTEST/WITNESS: WITNESS:
/s/ /Xxxxxxxx Xxxxxxx /s/ X. Xxxxxxx
---------------------------------------------- ------------------------------------
Its: Administrative Assistant Name: x. Xxxxxxx
----------------------------------------- ------------------------------
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SCHEDULE OF EXHIBITS
EXHIBIT "A": RULES AND REGULATIONS
EXHIBIT "A-1": TENANT MOVE-IN RULES AND REGULATIONS
EXHIBIT "B": INITIAL PREMISES
EXHIBIT "B-1": FOURTH FLOOR EXPANSION PREMISES
EXHIBIT "B-2": THIRD FLOOR EXPANSION PREMISES
EXHIBIT "C": PRIMARY LEASE IMPROVEMENT AGREEMENT
EXHIBIT "C-1": INITIAL PREMISES SCHEDULE OF IMPROVEMENTS
EXHIBIT "C-2": THIRD FLOOR EXPANSION PREMISES SCHEDULE OF IMPROVEMENTS
EXHIBIT "C-3": LANDLORD'S WORK FOR INITIAL PREMISES AND THIRD FLOOR EXPANSION
PREMISES
EXHIBIT "D": ESTOPPEL CERTIFICATE
EXHIBIT "E": FOURTH FLOOR EXPANSION PREMISES LEASE IMPROVEMENT AGREEMENT
EXHIBIT "E-1": SCHEDULE OF FOURTH FLOOR EXPANSION PREMISES IMPROVEMENTS
EXHIBIT "E-2": LANDLORD'S WORK FOR FOURTH FLOOR EXPANSION PREMISES
EXHIBIT "F": LEGAL DESCRIPTION
EXHIBIT "G": SPECIAL STIPULATIONS
EXHIBIT "H" BUILDING STANDARD ELECTRICAL SPECIFICATIONS
EXHIBIT "I" SCHEDULE OF TELECOMMUNICATIONS EQUIPMENT
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EXHIBIT "A"
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by tenants or used by them for any purpose
other than for ingress to and egress from their respective premises.
The halls, passages, exits, entrances, elevators, escalators and
stairways are not intended for the use of the general public and
Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with
whom any tenant normally deals in the ordinary course of such tenant's
business unless such persons are engaged in illegal activities. No
tenant, and no employees or invitees of any tenant, shall go upon the
roof of the Building, except as authorized by Landlord or as permitted
by the provisions of the Special Stipulations governing access thereto
and the use thereof.
2. No sign, placard, picture, name, advertisement or notice, visible from
the exterior of the premises shall be inscribed, painted, affixed,
installed or otherwise displayed by any tenant either on its premises
or any part of the Building without the prior written consent of
Landlord, and Landlord shall have the right to remove any such sign,
placard, picture, name, advertisement, or notice without notice to and
at the expense of that tenant.
If Landlord shall have given such consent to any tenant at any time,
whether before or after the execution of the lease, such consent shall
in no way operate as a waiver or release of any of the provisions
hereof or of such lease, and shall be deemed to relate only to the
particular sign, placard, picture, name, advertisement or notice so
consented to by Landlord and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Landlord
with respect to any other such sign, placard, picture, name,
advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of the tenant by a person
approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of tenants only
and Landlord reserves the right to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung,
or placed in or used in connection with, any window or door on the
premises of any tenant without the prior written consent of Landlord.
In any event and with the prior written consent of Landlord, all such
items shall be installed in such a manner that they shall in no way be
visible from the exterior of the Building. No articles shall be placed
or kept on the window xxxxx so as to be visible from the exterior of
the Building. No articles shall be placed against glass partitions or
doors which might appear unsightly from outside the premises of any
tenant.
If Landlord shall determine that articles located in any tenant's
premises can be seen through any glass partitions or doors between the
Premises and any common areas of the Building and that such articles
are placed or arranged in an unsightly manner, Landlord may install
tinting or frosting on such glass partitions or doors.
5. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 8 a.m. Monday through Friday, and at all hours on
Saturdays, Sundays, and holidays all persons who
EXHIBIT "A"
Page 1 of 6
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are not tenants or their accompanied guests in the Building. Each
tenant shall be responsible for all persons which it allows to enter
the Building and shall be liable to Landlord for all acts of such
persons.
Landlord shall in no case be liable for damages for error with regard
to the admission to or exclusion from the Building of any person other
than actual damages arising by reason of Landlord's gross negligence or
willful misconduct.
During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Landlord's
reasonable, good faith opinion, Landlord reserves the right to prevent
access to the Building by closing the doors, or otherwise, for the
safety of tenants and protection of the Building and property in the
Building.
6. No tenant shall employ any person or persons other than the janitor or
Landlord for the purpose of cleaning the Premises unless otherwise
agreed to by Landlord in writing. Except with the written consent of
Landlord, no person or persons other than those approved by Landlord
shall be permitted to enter the Building for the purpose of cleaning
the same. No tenant shall cause any unnecessary labor by reason of such
tenant's carelessness or indifference in the preservation of good order
and cleanliness of the premises. Landlord shall in no way be
responsible to any tenant for any loss of property on the premises,
however occurring, or for any damage done to the effects of any tenant
by the janitor or any other employee or any other person unless such
loss or damage arises by reason of Landlord's gross negligence.
Landlord shall not be responsible for the preservation of good order
and cleanliness of the premises when the premises are occupied after
Normal Business Hours.
7. Each tenant shall see that all doors of its premises are closed and
securely locked and must observe strict care and caution that all water
faucets and other utilities that are not being used by Tenant while
such premises are closed shall be carefully shut off, so as to prevent
waste or damage, and for any default or carelessness the tenant shall
make good all injuries sustained by other tenants or occupants of the
Building. On multiple-tenancy floors, all tenants shall keep the door
or doors to the Building corridors closed at all times except for
ingress and egress.
8. Each tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning, and shall
refrain from attempting to adjust any controls except for minor
adjustments to such controls for purposes of keeping the temperature of
the interior of the Premises within the range normally customary for
comparable Premises in the Atlanta metropolitan area. Each tenant shall
keep window coverings in its premises closed when the effect of
sunlight or cold weather would impose unnecessary loads on the
Building's heating or air conditioning systems.
9. Only one key or key-card for each office in the premises shall be
furnished to tenant without charge. Additional keys are available at a
charge of $3.00 each; additional key-cards are available at a charge of
$7.00 each. No additional lock, latch, key-card or bolt of any kind
shall be placed upon any door nor shall any changes be made in existing
locks, key-cards or mechanisms thereof without written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned
or delayed. If Landlord shall give its consent to a change in existing
locks, then tenant shall in each case furnish Landlord with the key,
key-card, or other appropriate mechanism for any such lock. At the
termination of the Lease, tenant shall return to Landlord all keys,
key-cards, or other mechanisms furnished to tenant by Landlord, or
otherwise procured by Tenant, and in the event of loss of any such
items so furnished, Tenant shall pay to Landlord the cost thereof.
EXHIBIT "A"
Page 2 OF 6
41
10. No tenant shall make or have made additional copies of any keys or
access devices provided by Landlord. Each tenant, upon the termination
of the tenancy, shall deliver to Landlord all keys or access devices
for the Building, offices, rooms and toilet rooms which shall have been
furnished to the tenant or which the tenant shall have made. In the
event of the loss of any keys or access devices so furnished by
Landlord, tenant shall pay Landlord therefor.
11. The toilet rooms, toilets, urinals, wash bowls, and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever, including
coffee grounds, shall be thrown therein, and the expense of any
breakage, stoppage or damages resulting from violation of this rule
shall be borne by the tenant who, or whose employees or invitees, shall
have caused it.
12. Except in connection with Tenant's use and operation of the Generator
and/or the Supplemental HVAC system, as more particularly discussed in
the Special Stipulations, no tenant shall use or keep on its premises
or the Building any kerosene, gasoline or inflammable or combustible
fluid or material. Except for such Supplemental HVAC System, no tenant
shall use any method of heating or air conditioning other than that
supplied by Landlord.
13. Smoking is not permitted anywhere in the Building, or along the
Building grounds or in any parking facilities, except for in such
areas, if any, as shall be designated by Landlord from time to time.
14. No tenant shall use, keep or permit to be used or kept in its premises
any foul or noxious gas or substance or permit or suffer such premises
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors
and/or vibrations or interfere in any way with other tenants or those
having business therein, nor shall any birds or animals other than
seeing eye dogs and like animals be brought or kept in or about any
premises of the Building.
15. No cooking shall be done or permitted by any tenant on its premises
except for cooking from which there are no strong or offensive odors in
standardized non-commercial microwave ovens (except that use by the
tenant of Underwriter's Laboratory approved equipment for the
preparation of coffee, tea, hot chocolate and similar beverages for
tenants and their employees shall be permitted, provided that such
equipment and use is in accordance with all applicable federal, state,
and city laws, codes, ordinances, rules and regulations) nor shall its
premises be used for lodging.
16. Except with the prior written consent of Landlord, no tenant shall sell
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on its
premises, nor shall tenant carry on, or permit or allow any employee or
other person to carry on, the business of stenography, typewriting,
printing, photocopying or any similar business in or from its premises
for the service or accommodation of occupants of any other portion of
the Building, nor shall its premises be used for the storage of
merchandise or for manufacturing of any kind, or the business of a
public xxxxxx shop, beauty parlor, nor shall its premises be used for
any improper, immoral or objectionable purpose, or any business
activity other than that specifically provided for in that tenant's
lease.
17. If tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's reasonable
instructions for their installation. No tenant shall operate any
television, radio, recorder or sound system in such a manner as to
cause a nuisance to any other tenant of the Building.
EXHIBIT "A"
Page 3 of 6
42
18. Landlord will act reasonably in directing electricians as to where and
how telephone, telegraph and electrical wires are to be introduced or
installed. No boring or cutting for wires will be allowed without the
prior written consent of Landlord. The location of burglar alarms,
telephones, call boxes and other office equipment affixed to the
premises shall be subject to the written approval of Landlord, which
approval shall not be unreasonably withheld or delayed.
19. Except as otherwise provided in the Special Stipulations, no tenant
shall install any radio or television antenna, loudspeaker or any other
device on the exterior walls or the roof of the Building. No tenant
shall interfere with radio or television broadcasting or reception from
or in the Building or elsewhere.
20. No tenant shall lay linoleum, tile, carpet or any other floor covering
so that the same shall be affixed to the floor of its premises in any
manner except as approved in writing by Landlord. The expense of
repairing any damage resulting from a violation of this rule or the
removal of any floor covering shall be borne by the tenant by whom, or
by whose contractors, employees or invitees, the damage shall have been
caused.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise, or other property will be received in the Building or
carried up or down the elevators except between such hours and in such
elevators as shall be reasonably designated by Landlord. Landlord,
acting reasonably, shall have the right to prescribe the weight, size
and position of all safes, furniture, files, bookcases or other heavy
equipment brought into the Building. Safes or other heavy objects
shall, if considered necessary by Landlord, stand on wood strips of
such thickness as determined by Landlord to be necessary to distribute
properly the weight thereof. Landlord will not be responsible for loss
of or damage to any such safe, equipment or property from any cause,
and all damage done to the Building by moving or maintaining any such
safe, equipment or other property shall be repaired at the expense of
the responsible tenant.
Business machines and mechanical equipment belonging to any tenant
which cause noise or vibration that may be transmitted to the structure
of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building shall be
placed and maintained by tenant, at tenants expense, on vibration
eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the
Building must be acceptable to Landlord (acting reasonably) and must
carry appropriate amounts of liability and worker's compensation
insurance. Upon Landlord's request, Landlord shall be named as
additional insured under such person's liability insurance policy, and
Landlord may require proof of insurance in the form of a certificate of
insurance.
22. All movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material,
merchandise or materials which requires the use of elevators or
stairways, or movement through the Building entrances or lobby shall be
under the supervision of Landlord and in the manner agreed between the
tenant and Landlord by prearrangement before the performance as set
forth in the Tenant Move-In Rules and Regulations attached hereto as
Exhibit "A-1" and by this reference incorporated herein. Such
prearrangement initiated by Tenant will include the determination by
Landlord, and as to the time, method, and routing of movements and as
to limitations for safety and or other concern which may prohibit any
article, equipment or any other item from being brought into the
Building. Tenant assumes all risks as to the damage to articles moved
and injury to persons or public engaged or not engaged in such
movement, including equipment, property and personnel of Landlord if
damaged or injured as a result of acts in connection with carrying out
this service for a tenant from the time of entering the Building to
completion of work. All damages done to the Building by the
installation or
EXHIBIT "A"
Page 4 of 6
43
removal of any property of a tenant or done by a tenant's property
while in the Building, shall be repaired at the expense of such tenant.
23. No tenant shall place a load upon any floor of its premises which
exceeds the load per square foot which such floor was designed (or
redesigned and retrofitted with Landlord's permission) to carry and
which is allowed by law. Without Landlord's consent, which consent
shall not be unreasonably withheld, conditioned or delayed, no tenant
shall xxxx, or drive nails (other than to hang pictures), screw or
drill into, the partitions, woodwork or plaster or in any way deface
its premises or any part thereof.
24. No tenant shall install, maintain or operate upon its premises any
vending machines without the written consent of Landlord.
25. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards or other such
material-handling equipment as Landlord may approve. No other vehicles
of any kind shall be brought by any tenant into or kept in or about its
premises.
26. Each tenant shall store all of its trash and garbage within the
interior of its premises. No material shall be placed in the trash
boxes or receptacles if such material is of such nature that it may not
be disposed of in the ordinary and customary manner of removing and
disposing of trash and garbage in the city without violation of any law
or ordinance governing such disposal. All trash, garbage and refuse
disposal shall be made only through entryways and elevators provided
for such purposes and at such times as Landlord shall designate.
27. Canvassing, soliciting, distribution of handbills or any other written
materials, and peddling in the Building are prohibited and each tenant
shall cooperate to prevent the same. No tenant shall make room-to-room
solicitation of business from other tenants in the Building.
28. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules
and Regulations of the Building.
29. Without the prior written consent of Landlord, no tenant shall use the
name of the Building in connection with or in promoting or advertising
the business of such tenant except as that tenant's address.
30. Each tenant shall comply with all energy conservation, safety, fire
protection and evacuation procedures and regulations established by any
governmental agency, and all reasonable rules, regulations and
procedures established therefor by Landlord.
31. Tenant assumes any and all responsibility for protecting its premises
from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the premises closed.
32. The requirements of each tenant will be attended to only upon
application at the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside
of their regular duties unless under special instructions from
Landlord, and no employees will admit any person (tenant or otherwise)
to any office without specific instructions from Landlord.
33. No waiver by Landlord of any one or more of these Rules and Regulations
for the benefit of any particular tenant shall be construed as a waiver
of such Rules and Regulations in favor of any
EXHIBIT "A"
Page 5 of 6
44
other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the
Building.
34. Landlord reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for
safety and security, for care and cleanliness of the Building and for
the preservation of good order therein, and to apply such rules and
regulations uniformly to all tenants of the Building. Each tenant
agrees to abide by all such Rules and Regulations hereinabove stated
and any additional reasonable rules and regulations which are adopted.
35. All wallpaper or vinyl fabric materials which any tenant may install on
painted walls shall be applied with a strippable adhesives. The use of
nonstrippable adhesives will cause damage to the walls when materials
are removed and repairs made necessary thereby shall be made by
Landlord at that tenant's expense.
36. Each tenant will refer all contractors, contractors' representatives
and installation technicians, rendering any service to such tenant, to
Landlord's reasonable supervision, approval, and control before
performance of any contractual service. This provision shall apply to
all work performed in the Building, including installations of
telephones, telegraph equipment, electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim,
windows, ceilings, equipment or any other physical portion of the
Building.
37. Each tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that
such accidents or defects may be attended to promptly.
38. Each tenant shall be responsible for the observance of all of the
foregoing Rules and Regulations by its employees, agents, clients,
customers, invitees and guests.
39. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part,
the terms, covenants, agreements and conditions of any lease of any
premises in the Building.
EXHIBIT "A"
Page 6 of 6
45
EXHIBIT "A-1"
TENANT MOVE-IN RULES AND REGULATIONS
THE FOLLOWING RULES AND REGULATIONS APPLY ONLY TO TENANT'S INITIAL MOVE INTO THE
INITIAL PREMISES AND THE THIRD FLOOR EXPANSION PREMISES, RESPECTIVELY.
49. Landlord, Tenant's representative responsible for coordinating the
move, and Tenant's furniture installation company, delivery company,
moving company and related vendors involved in the move shall meet no
less than fifteen (15) days prior to Tenant's scheduled move-in date to
coordinate times, establish methods of delivery and reserve use of the
loading docks, service corridors, elevators and stairwells for the
move. There will be no charge for the right to reserve or use the
loading docks, service corridors, elevators and stairwells for the
move.
50. Tenant's moving contractor will provide Landlord with a certificate of
insurance evidencing coverage of workmen's compensation insurance
affording applicable statutory coverage, and containing required
statutory limits.
51. All companies making deliveries in connection with the move are to
adhere to the moving rules and regulations pertaining to the protection
of the Premises and the Building. All costs associated with adhering to
such protection procedures shall be the responsibility of the Tenant
and/or Tenant's freight, moving or delivery company.
(1) Protection should be installed the evening prior to the move
and removed immediately upon completion. Tenant (or its moving
company) is responsible for leaving the area in as clean a
condition as it was prior to the move.
(2) The Building floor covering must be protected with masonite or
plywood along the prescribed route of movement through the
Building, as outlined by Landlord.
(3) The elevator lobbies, Building corridors and doors must be
protected with cardboard, plywood or other materials
pre-approved by Landlord.
(4) The elevator and entrance door frames must be protected with
2' x 4' boards at 90 degree angles taped to said door frames.
(5) The elevator cab walls and flooring must be protected with
masonite, plywood or soft pads.
(6) The movement of materials, furniture, etc. is limited only to
those corridors stairwells, elevators and service areas
designated by Landlord.
52. It is the Tenant's responsibility to notify Landlord of items to be
moved which are unusually large or heavy (in excess of 3,500 pounds) or
which may require review by Landlord. Any large items that cannot be
placed in the service elevator will require special hoisting
arrangements which will be made through the Landlord. Tenant's moving
contractor should include in the bid price to the Tenant any additional
charges required for extra services which may need to be provided by
the elevator contractor to hoist large items.
53. Access control personnel will be notified as to the move-in schedule
and will monitor the progress of the move. Any changes in the move-in
schedule must be reported to Landlord or
EXHIBIT "A-1"
Page 1 of 2
46
Landlord's representative immediately. An emergency phone number will
be required by the access control personnel for the moving contractor's
supervisor and for the Tenant's representative responsible for
coordinating the move.
54. Landlord specifically reserves the right to modify any of these move-in
rules and regulations and to establish such additional reasonable rules
and regulations as in its reasonable judgment shall from time-to-time
be required for the safety, protection, care and cleanliness of the
Building, the operation thereof, the preservation and good order
therein or the protection and comfort of the other tenants of the
building and their agents, employees and guest.
EXHIBIT "A-1"
Page 2 of 2
47
EXHIBIT "B"
[INITIAL PREMISES FLOOR PLAN]
[TO BE INSERTED]
EXHIBIT "B"
Page 1 of 1
48
EXHIBIT "B-1"
[FOURTH FLOOR EXPANSION PREMISES FLOOR PLAN]
EXHIBIT "B-1"
Page 1 of 1
49
EXHIBIT "B-2"
[THIRD FLOOR EXPANSION PREMISES FLOOR PLAN]
EXHIBIT "B-2"
Page 1 of 1
50
EXHIBIT "C"
PRIMARY LEASE IMPROVEMENT AGREEMENT
55. GENERALLY
Landlord and Tenant acknowledge and agree that this Primary Lease
Improvement Agreement shall govern the terms and conditions on which Tenant
Improvements shall be constructed and installed in the Initial Premises and the
Third Floor Expansion Premises, as the case may be. The text of each of the
following paragraphs has been prepared specifically with reference to the
Initial Premises and, except as hereinafter provided, shall also apply in each
and every respect to the buildout of the Third Floor Expansion Premises.
Wherever the context so requires, any reference in this Primary Lease
Improvement Agreement to Tenant Improvements, Plans, Landlord's Work and
Tenant's Cost shall apply mutatis mutandis to the construction of Tenant
Improvements in the Third Floor Expansion Premises, with the following
exceptions. Landlord's Allowance for construction of Tenant Improvements shall
be $12.00 per rentable square foot with respect to the Third Floor Expansion
Premises. In addition, Landlord has not agreed to provide any additional other
tenant improvement allowance or so-called "Additional Allowance" (other than as
set forth in the immediately preceding sentence) to Tenant for purposes of
funding the cost of Tenant Improvements in the Third Floor Expansion Premises.
Moreover, in no event and under no circumstances shall the cap applied to
payment by Tenant of Tenant's Cost under subparagraph 4(b), below, apply in any
respect whatsoever to Tenant's obligation to pay for Tenant's Cost of Tenant
Improvements to the Third Floor Expansion Premises. In the event that the cost
of the Tenant Improvements for the Third Floor Expansion Premises is less than
Landlord's Allowance therefor (the "Remaining Allowance"), Tenant shall have the
right to apply any such Remaining Allowance toward payment of Tenant's Cost of
Tenant Improvements for the Fourth Floor Expansion Premises. Any portion of the
Remaining Allowance shall be disbursed by Landlord to Tenant upon satisfaction
of each and every condition set forth in subparagraph 2(c) of the Fourth Floor
Expansion Premises Lease Improvement Agreement.
56. IMPROVEMENTS
(1) At Tenant's expense, Landlord shall furnish and install
substantially in accordance with the construction drawings and
specifications approved by Tenant and Landlord, partitions,
doors, lighting fixtures, acoustical ceiling, floor coverings,
electrical outlets, telephone outlets, air conditioning, fire
sprinklers, signage, wall finishes, and construction clean-up
and other improvements required by Tenant which are normally
performed by the construction trades (the "Tenant
Improvements"). Landlord shall cause to be prepared at
Tenant's expense all architectural plans and specifications,
and all structural, mechanical and electrical engineering
plans and specifications (the "Plans") required for Tenant's
occupancy. The preparation of the Plans shall not include
selection of non-building standard finishes, or any fixtures
or furniture, or any other elements of interior design.
(2) At Landlord's expense, Landlord shall or has provided the
improvements described in Exhibit "C-3" attached hereto and by
this reference incorporated herein (hereinafter referred to as
"Landlord's Work").
(3) Landlord shall provide a construction management team that
will supervise and facilitate construction of all Tenant
Improvements. Such construction management team shall receive
a management fee in an amount equal to five percent (5%) of
all costs associated with the Tenant Improvements (including
any portion relating to "Tenant's Cost"(as
EXHIBIT "C"
Page 1 of 4
51
hereinafter defined)). Such construction management fee shall
be paid to Landlord's construction manager as a disbursement
from "Landlord's Allowance" (as defined below).
(1)
57. LANDLORD'S ALLOWANCE
As Landlord's contribution to work provided in Paragraph 1(a), Landlord
shall provide Tenant with an allowance of Two Hundred Eight Thousand Four
Hundred Fifty-Two and 00/100 Dollars ($208,452.00) ("Landlord's Allowance") with
respect to the Initial Premises. Notwithstanding the above, Tenant may, at
Tenant's discretion, use all or any portion of Landlord's Allowance for costs
related to design and construction of the Tenant Improvements, Tenant's signage
costs, moving expenses and installation of Tenant's furniture; provided,
however, that as a condition to Tenant's right to use Landlord's Allowance for
such purposes, Tenant shall be required to improve and finish all portions of
the Initial Premises to at least the following minimum standards: (i) a fully
completed ceiling with lights connected and switched and ceiling tiles
installed; (ii) the base building heating, ventilating and air conditioning
system installed, including interior duct work, supply grills, and interior zone
controls; (iii) sprinkler heads installed or relocated in accordance with
applicable codes; (iv) a fully operational and certified life safety system
installed; (v) finished floors; (vi) all drywall surfaces fully skimmed, sanded,
painted and finished; (vii) standard electrical distribution outlets for
convenience power installed and connected; and (viii) a certificate of occupancy
from the appropriate governmental authority shall be issued for such space.
Landlord represents and warrants to Tenant that implementation of the Plans will
(i) exceed the minimum standards set forth in the immediately preceding
sentence, and (ii) result in the completion of all improvements called for in
the pricing drawings approved by Landlord and Tenant.
[THE FOLLOWING PARAGRAPH APPLIES ONLY TO CONSTRUCTION OF TENANT IMPROVEMENTS IN
THE INITIAL PREMISES, AND NOT OTHERWISE]
In addition to the Landlord's Allowance described above, Landlord
agrees to provide Tenant with an additional allowance with respect to
construction of Tenant Improvements in the Initial Premises up to the amount of
Forty-Nine Thousand Five Hundred Twenty-Two and 26/100 Dollars ($49,522.26),
which allowance is hereinafter referred to as the "Additional Allowance." Tenant
shall pay interest on the Additional Allowance in advance for the twelve month
period beginning on the Commencement Date at a rate of fifteen percent (15%) per
annum in the amount of up to Seven Thousand Four Hundred Twenty-Eight and 34/100
Dollars ($7,428.34), as follows: (i) the sum of Six Thousand Eight Hundred Four
and 83/100 Dollars ($6,804.83) shall be paid by Tenant to Landlord upon the full
execution and delivery of this Lease, and (ii) the balance of interest on the
Additional Allowance due to Landlord for the twelve month period beginning on
the Commencement Date, up to a maximum Six Hundred Twenty-Three and 51/100
dollars ($623.51), shall be paid by Tenant to Landlord upon demand. Upon the
first anniversary of the Commencement Date, Tenant shall elect either to (1)
repay to Landlord the full amount of the Additional Allowance, or (2) amortize
the Additional Allowance on a straight-line basis with interest at the rate of
fifteen percent (15%) per annum over the remainder of the Lease Term. In such
event, Tenant may prepay to Landlord all or any portion of the Additional
Allowance at any time and from time to time. Any such payments made by Tenant
shall be additional rent and shall, at Landlord's option, be paid as and when
Tenant's installments of Base Rent become due.
EXHIBIT "C"
Page 2 of 4
52
58. TENANT'S COST
(1) Tenant shall bear the cost, if any, of the Tenant's
Improvements over and above the Landlord's Allowance and the
Additional Allowance (with respect to only the Initial
Premises)(such additional cost is hereinafter referred to as
"Tenant's Cost"). The cost of any modifications of any part of
the work described in Paragraph 1 already completed that are
requested by Tenant shall constitute part of Tenant's Cost. In
addition, subject to Landlord's approval (which approval shall
not be unreasonably withheld or delayed), Tenant may install
additional air conditioning units in the Initial Premises.
(2) Notwithstanding subparagraph (a) of this Paragraph 3 to the
contrary, Landlord agrees that Landlord shall be solely
responsible for and shall bear all cost and expenses incurred
in connection with the repairs, renovations and improvements
to the Initial Premises made in accordance with the Plans as
approved by Tenant in excess of $263,817.56; provided however,
that Tenant shall pay for all costs associated with any
Tenant-requested changes or modifications of the improvements
as defined by the Plans in Paragraph 1 of this Exhibit "C"
after the Plans have been approved by Tenant. Tenant will be
liable for any increase in construction costs if Tenant causes
a Tenant Delay.
(3) Tenant shall pay one-half (1/2) of all amounts payable by
Tenant to Landlord pursuant to this Paragraph 4 of this
Exhibit "C" immediately following Tenant's approval of the
price to be paid to Landlord as per subparagraph 5(b) hereof.
Tenant shall pay the remaining amounts immediately upon the
Commencement Date of the Lease (or, in the case of the Third
Floor Expansion Premises, upon the Third Floor Expansion
Effective Date).
59. PLANNING SCHEDULE
(1) Preparation and Approval of Plans:
(1) Landlord and Tenant shall diligently pursue the
preparation of the Plans in accordance with Exhibits
"C-1" and "C-2", as the case may be. Failure of
Tenant to provide said instructions by the dates
specified in Exhibits "C-1" and "C-2", as the case
may be, shall constitute a Tenant Delay.
(2) The Plans shall then be prepared in conformance with
Landlord's requirements and all applicable codes,
ordinances and laws, and shall specify materials and
details equal to or better than Landlord's building
standard. The Plans shall be subject to approval of
Landlord and the government officials having
jurisdiction. Landlord shall submit complete
construction plans to Tenant for approval and Tenant
shall approve said Plans in accordance with Exhibits
"C-1" and "C-2", as the case may be. Failure of
Tenant to approve the Plans in accordance with
Exhibits "C-1" and "C-2", as the case may be, shall
constitute a Tenant Delay.
(2) Upon receipt of the approved Plans, Landlord shall provide a
quotation based upon competitively bid subcontract pricing for
the work to Tenant for approval as the price to be paid by
Tenant to Landlord for Tenant's Cost. Upon written approval of
such price by Tenant, Landlord and Tenant shall be deemed to
have given final approval to the Plans as the basis on which
the quotation was made, and Landlord shall be authorized to
proceed with the improvements to the Initial Premises in
accordance with such Plans. Tenant will not unreasonably
withhold its approval of such price. Failure of Tenant to
EXHIBIT "C"
Page 3 of 4
53
approve or disapprove such price in accordance with Exhibits
"C-1" and "C-2", as the case may be, or unreasonable
disapproval of such price, shall constitute a delay by Tenant
in accordance with the provisions of Paragraph 4(b) of the
Lease. Landlord shall not be obligated to proceed with any
improvements of the Initial Premises until such time as Tenant
approves a price for the Tenant's Cost. Exhibits "C-1" and
"C-2", as the case may be, provide the intermediate actions
required of both Landlord and Tenant to satisfy the schedule
hereof.
(3) Any delays caused by Tenant's revision or change orders to the
approved Plans shall not constitute a delay by Tenant in
accordance with the provisions of Paragraph 4(b) of this Lease
with respect to the Initial Premises so long as such revisions
or change orders are solely and reasonably related to Tenant's
election to expand the size of the Initial Premises from
12,917 rentable square feet, as originally contemplated by
Landlord and Tenant, to the present size of 17,371 rentable
square feet. Landlord hereby agrees that Tenant may occupy any
portion of the Initial Premises as same becomes ready for
Tenant's occupancy notwithstanding that the entire Initial
Premises is not ready for Tenant's occupancy at such time.
60. TENANT'S WORK
All work not within the scope of the normal construction trades
employed in the Building, including, but not limited to, furnishing and
installing of telephones, furniture, and office equipment shall be furnished and
installed by Tenant at Tenant's expense. Tenant shall adopt a schedule in
conformance with the schedule of Landlord's contractors and conduct its work in
such a manner as to maintain harmonious labor relations and as not to interfere
unreasonably with or delay the work of Landlord's contractors. Tenant's
contractors and subcontractors shall be acceptable to and approved by Landlord
and shall be subject to the administrative supervision of Landlord. Contractors
and subcontractors engaged by Tenant shall employ persons and means to insure so
far as may be possible the progress of the work without interruption on account
of strikes, work stoppages or similar causes for delay. Landlord shall give
access and entry to the Premises to Tenant and its contractors and
subcontractors and reasonable opportunity and time and reasonable use of
facilities to enable Tenant to adapt the Premises for Tenant's use; provided,
however, that if such entry is prior to the Commencement Date or the Third Floor
Expansion Effective Date, as the case may be, such entry shall be subject to all
the terms and conditions of the Lease, except the payment of Rent.
EXHIBIT "C"
Page 4 of 4
54
EXHIBIT "C-1"
INITIAL PREMISES SCHEDULE OF IMPROVEMENTS
THE FOLLOWING SCHEDULE MORE CLEARLY DEFINES THE INTERMEDIATE STEPS
ESSENTIAL TO MEET THE DATES AS PROVIDED IN EXHIBIT "C", ALL OF WHICH LANDLORD
AND TENANT ACKNOWLEDGE AND AGREE HAVE BEEN DULY AND TIMELY SATISFIED BY LANDLORD
AND TENANT AS OF THE DATE OF EXECUTION OF THIS AMENDED AND RESTATED LEASE:
ACTION
1. TENANT PROVIDES PROGRAM INFORMATION TO LANDLORD AND/OR ARCHITECT:
2. PRELIMINARY SPACE PLAN DELIVERED TO TENANT BY LANDLORD:
3. TENANT'S ACCEPTANCE OF PRELIMINARY SPACE PLAN:
4. PRICING NOTES DELIVERED TO TENANT BY LANDLORD:
5. TENANT'S ACCEPTANCE OF PRICING NOTES:
6. DETAILED PRELIMINARY ESTIMATE COMPLETED BY LANDLORD AND DELIVERED TO
TENANT:
7. TENANT'S FINAL ACCEPTANCE OF PRELIMINARY SPACE PLAN AND PRICING
ESTIMATE NO LATER THAN:
8. DOCUMENTS TO TENANT BY LANDLORD:
9. [INTENTIONALLY OMITTED]
10. LANDLORD SHALL MAKE REVISIONS TO CONSTRUCTION DOCUMENTS, IF NECESSARY,
AND RELEASE THEM FOR BIDDING AND PERMITTING:
11. FINAL PRICING AND LANDLORD'S COSTS ON CONSTRUCTION DOCUMENTS DELIVERED
TO TENANT BY LANDLORD:
12. TENANT'S FINAL ACCEPTANCE OF ALL PLANS AND PRICING DELIVERED TO
LANDLORD NO LATER THAN:
13. COMMENCEMENT OF CONSTRUCTION, SUBJECT TO PERMIT APPROVAL BY CODE
OFFICIALS HAVING JURISDICTION:
14. SUBSTANTIAL COMPLETION AND START OF WORKSTATION INSTALLATION ON OR
ABOUT:
15. OCCUPANCY BY TENANT.
EXHIBIT "C-1"
Page 1 of 2
55
NOTE: SCHEDULE ASSUMES ALL MATERIALS, EQUIPMENT, AND FINISHES ARE IN STOCK OR
AVAILABLE IN A TIMELY MANNER SO AS TO NOT DELAY THE JOB PROGRESS. SUBSTITUTION
OR DELETION OF SPECIFIED ITEMS MAY BE REQUIRED TO MAINTAIN SCHEDULE. LANDLORD'S
OBLIGATION TO MEET ANY OR ALL OF THE DATES SET FORTH ABOVE SHALL BE SUBJECT TO
LANDLORD'S ACTUAL RECEIPT OF TENANT'S APPROVALS, PROGRAM INFORMATION, ETC. ON OR
BEFORE THE DATES SET FORTH ABOVE.
EXHIBIT "C-1"
Page 2 of 2
56
EXHIBIT "C-2"
THIRD FLOOR EXPANSION PREMISES SCHEDULE OF IMPROVEMENTS
THE FOLLOWING SCHEDULE MORE CLEARLY DEFINES THE INTERMEDIATE STEPS ESSENTIAL TO
MEET THE DATES AS PROVIDED IN EXHIBIT "C":
ACTION
16. TENANT PROVIDES PROGRAM INFORMATION TO LANDLORD AND/OR ARCHITECT AND
DELIVERS PRELIMINARY SPACE PLAN TO LANDLORD:
17. LANDLORD'S COMMENTS ON TENANT'S PRELIMINARY SPACE PLAN AND PRELIMINARY September 14, 1999
SPACE PLAN DELIVERED TO TENANT BY LANDLORD:
8 days after
------------------------
Action 1
18. TENANT'S ACCEPTANCE OF PRELIMINARY SPACE PLAN:
4 days after
------------------------
Action 2
19. PRICING NOTES DELIVERED TO TENANT BY LANDLORD:
6 days after
------------------------
Action 3
20. TENANT'S ACCEPTANCE OF PRICING NOTES:
3 days after
------------------------
Action 4
21. DETAILED PRELIMINARY ESTIMATE COMPLETED BY LANDLORD AND DELIVERED TO
TENANT:
3 days after
------------------------
Action 5
22. TENANT'S FINAL ACCEPTANCE OF PRELIMINARY SPACE PLAN AND PRICING
ESTIMATE NO LATER THAN:
3 days after
------------------------
Action 6
23. CONSTRUCTION DOCUMENTS TO TENANT BY LANDLORD:
14 days after
------------------------
Action 7
24. LANDLORD SHALL MAKE REVISIONS TO CONSTRUCTION DOCUMENTS, IF NECESSARY,
AND RELEASE THEM FOR BIDDING AND PERMITTING:
7 days after
------------------------
Action 8
25. FINAL PRICING AND LANDLORD'S COSTS ON CONSTRUCTION DOCUMENTS DELIVERED
TO TENANT BY LANDLORD:
7 days after
------------------------
Action 9
26. TENANT'S FINAL ACCEPTANCE OF ALL PLANS AND PRICING DELIVERED TO
LANDLORD NO LATER THAN:
3 days after
------------------------
Action 10
27. COMMENCEMENT OF CONSTRUCTION, SUBJECT TO PERMIT APPROVAL BY CODE
OFFICIALS HAVING JURISDICTION:
3 days after
------------------------
Action 11
No later than March 1, 2000
28. SUBSTANTIAL COMPLETION AND OCCUPANCY BY TENANT.
EXHIBIT "C-2"
Page 1 of 2
57
NOTE: SCHEDULE ASSUMES ALL MATERIALS, EQUIPMENT, AND FINISHES ARE IN STOCK OR
AVAILABLE IN A TIMELY MANNER SO AS TO NOT DELAY THE JOB PROGRESS. SUBSTITUTION
OR DELETION OF SPECIFIED ITEMS MAY BE REQUIRED TO MAINTAIN SCHEDULE. LANDLORD'S
OBLIGATION TO MEET ANY OR ALL OF THE DATES SET FORTH ABOVE SHALL BE SUBJECT TO
LANDLORD'S ACTUAL RECEIPT OF TENANT'S APPROVALS, PROGRAM INFORMATION, ETC. ON OR
BEFORE THE DATES SET FORTH ABOVE.
EXHIBIT "C-2"
Page 2 of 2
58
EXHIBIT "C-3"
LANDLORD'S WORK FOR INITIAL PREMISES AND
THIRD FLOOR EXPANSION PREMISES
1. STRUCTURE
Steel Structure with poured concrete floor over metal pan with a level
concrete floor (broom clean) ready for installation of glue down
carpeting (or other Tenant finish).
2. PERIMETER WALLS
Glass and precast concrete with the inside face of walls insulated and
with drywall installed, spackled, taped and sanded. Primer and paint
(or other finish) by Tenant.
3. COLUMNS AND CORE WALLS
(2) All columns shall be exposed. Framing, drywall and finish by
Tenant.
(3) The core walls shall be framed, drywalled, spackled, finished,
taped and sanded from slab to ceiling ready to accept a wall
finish. Core walls in public corridor will be finished by
Landlord. Core walls in Tenant space will be finished by
Tenant.
4. WINDOW TREATMENTS
1" horizontal mini-blinds at all perimeter glass.
5. DRAWINGS
The Landlord shall deliver the following base building
drawings/documents as needed by Tenant:
(a) A dimensional outline floor plan at a minimum scale of 1/8" =
1'0".
(b) Structural drawings showing the size and layout of the framing
for the Tenant's floor and the floor immediately above and
below.
(c) Mechanical and Electrical Drawings (as needed).
6. CORE
(a) Multi-Tenant Floor
Core complete with air conditioning, restrooms, finished
elevators, elevator lobby (with carpet, fire doors, lights,
finished walls and ceiling), stairways, ventilation shafts,
electrical/telephone rooms, mechanical room, janitor's closet,
and any required finished existing corridors (with carpet,
lights, finished walls and ceiling).
(b) Full-Floor Tenant
Core complete with air conditioning, restrooms, finished
elevators, unfinished elevator lobby, stairways, ventilation
shafts, electrical/telephone rooms, mechanical room and
janitor's closet.
7. DRINKING FOUNTAINS
One ADA accessible drinking fountain per floor.
EXHIBIT "C-3"
Page 1 of 4
59
8. RESTROOMS
Two common ADA accessible restrooms finished according to building
standard with ceramic floors, ceramic wet walls, wallcovering on other
walls, finished ceilings, granite vanities, enclosed stalls,
accessories, fixtures, trim and lighting.
9. DOORS
Finished wood stain doors complete with metal frame trim and hardware,
installed on all doorways in the service core with lever handle
hardware.
10. TELEPHONE
Access in telephone and electrical rooms on each floor to wiring for
telephone. Landlord will provide and install the appropriate wiring
from the base of the Building to such telephone and electrical rooms.
Wiring from rooms shall be Tenant's responsibility, at Tenant's
expense, to install and subscribe to any such service if Tenant so
desires.
11. PLUMBING
One valved point of connection for cold water. Two points of connection
to waste and vent lines on each floor.
12. AIR CONDITIONING
Each floor is equipped with two (2) 15-ton multizone constant volume
airhandlers which provide approximately 12,000 cubic feet per minute
(CFM) per unit. Each of these handlers serves the primary ductwork for
5 zones (i.e., ten zones per floor). Six of the 10 zones per floor are
heated with thermostatically controlled duct heaters which range in
size from 5KW to 9KW. The lobby level and the top floor (floor 36) have
all zones heated with duct heaters. Two (2) Carrier centrifugal
chillers (1040 tons and 1070 tons) provide cooling to the building.
13. ELECTRICAL
An electrical capacity of 5 xxxxx per square foot of rentable area for
low voltage electrical consumption (120/208 volts) and 4.5 xxxxx per
square foot of rentable area for high voltage lighting and HVAC
(277/480 volts). Landlord will provide (but not install) up to one (1)
two foot x four foot fluorescent lighting fixture per one hundred (100)
rentable square feet of the Demised Premises. Separate submeters shall
be placed on all abnormal electrical consumptions as part of Tenant's
work.
Emergency power to serve elevators, emergency lighting, fire alarm and
security equipment will be provided by a diesel generator.
14. FIRE PROTECTION
(a) Fire Sprinklers
A complete, automatic fire protection system conforming to
NFPA 13 and hydraulically designed in accordance with NFPA 13
for Light Hazard Occupancy is provided for all tenant spaces
and common areas. Mechanical areas in the building are
designed in accordance with NFPA 13 for ordinary hazard
occupancies. Areas with completed ceilings will be provided
with chrome plated brass pendant heads centered in ceiling
tiles. Brass upright heads, mounted as required to meet base
system requirements will be installed in areas with unfinished
ceilings, with any turn downs and installation of pendant
heads performed as part of Tenant work. Lobby areas with
gypsum board ceilings will have concealed pendant heads with
flush ceiling coverplates.
EXHIBIT "C-3"
Page 2 of 4
60
(b) Fire Alarm
A fire alarm system including pull stations, ceiling and duct
mounted smoke detectors, water flow switches and tamper
switches will be installed as required to initiate alarms,
horns, and strobe devices for occupant evacuation. The system
shall comply, at a minimum, with the applicable provisions of
the ADA, NFPA 101, NFPA 72, NFPA 90A, NFPA 90B, and the Safety
Code for Elevators (ASME A17.1). Tenant shall be required to
install compatible devices within the Premises and connect to
base Building riser as part of Tenant buildout. (Compatible
devices are those that are UL listed for fire alarms and UL
listed to be used with Notifier Fire Alarm systems).
15. CEILING
A 2'x2' ceiling grid installed at 8'9" above finished floor. Ceiling
tile will be stacked on floor. Tile to be 24" x 24" Beveled Tegular
Cortega by Xxxxxxxxx or similar. Grid to be exposed narrow profile.
16. ELEVATORS
Building Elevators
(a) High Rise
The lobby and high rise floors (floors 20-34) are served by
five (5) 3500 pound capacity elevators each operating at 1000
feet per minute. Each of these elevators is a gearless
traction model.
(b) Low Rise
The low rise floors (floors 1-19, there is no floor 13) are
served by six (6) 3500 pound capacity elevators each operating
at 700 feet per minute. Each of these elevators is a gearless
traction model.
(c) Top Three Floors
The top three floors (floors 34-36) are served by one (1) 3000
pound capacity elevator operating at 200 feet per minute. This
elevator is a geared traction model.
(d) Freight Elevator
The main building's 36 floors (floors 1-36 and basement, but
there is no floor 13) are served by one (1) freight elevator.
The freight elevator has 3500 pounds of capacity and operates
at 1000 feet per minute. The freight elevator is a gearless
traction model.
Parking Deck and Loading Dock Elevators
- Parking Deck Elevator
The parking deck is served by two (2) 2000 pound capacity
passenger elevators operating at 300 feet per minute. Each of
these two elevators serves all seven levels of the parking
deck and two levels below the parking deck.
- Loading Dock Elevator
The loading dock elevator shuttles between the loading dock on
the east end of the building and the basement where transfer
can be made to the freight elevator. This elevator has 5000
pounds of capacity and operates at 35 feet per minute. The
loading dock elevator is a hydraulically operated model.
EXHIBIT "C-3"
Page 3 of 4
61
Elevator Control System
The elevators are operated by a newly installed all-digital
SCR drive controller.
EXHIBIT "C-3"
Page 4 of 4
62
EXHIBIT "D"
TENANT COMMENCEMENT AND ESTOPPEL CERTIFICATE
Landlord:
---------------------------------------------------------------------
Tenant:
-------
Premises:
----------------------------------------------------------------------
Area: Sq. Ft. Lease Date:
------------------------------------------- ---------------
The undersigned Tenant under the above-referenced lease (the "Lease")
hereby ratifies the Lease and certifies to ("Landlord") as owner of the real
property of which the premises demised under the Lease (the "Premises") is a
part, as follows:
1. That a complete copy of the Lease, including documents listed
in Paragraph 7 below (if any) is attached hereto as Exhibit "A" and is by this
reference incorporated herein.
2. That the term of the Lease commenced on ___________, _____ and
Tenant is in full and complete possession of the Premises and has commenced full
occupancy and use of the Premises, such possession having been delivered by
Landlord and having been accepted by Tenant.
3. That the Lease presently calls for monthly rent installments
of $____________, and that Tenant is paying monthly installments of rent of
$_____________ which commenced to accrue on the ___ day of _____________, ____.
4. That no advance rental or other payment has been made in
connection with the Lease, except rental for the current month. There is no
"free rent" or other concession under the remaining term of the Lease, and the
rent has been paid to and including, ________________, 19__.
5. That a security deposit in the amount of $___________ is being
held by Landlord, which amount is not subject to any set off reduction or to any
increase for interest or other credit due to Tenant.
6. That all obligations and conditions under said Lease to be
performed to date by Landlord or Tenant have been satisfied, free of defenses
and set-offs including all construction work in the Premises.
7. That the Lease is a valid lease and in full force and effect
and represents the entire agreement between the parties; that there is no
existing default on the part of Landlord or Tenant in any of the terms and
conditions thereof and no event has occurred which, with the passing of time or
giving of notice to both, would constitute an event of default, and that said
Lease has: (Initial One)
[ ] not been amended. modified, supplemented, extended, renewed or
assigned.
[ ] been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
EXHIBIT "D"
Page 1 of 2
63
8. That the Lease provides for a primary term of ___ months; the
term of the Lease expires on the ____ day of ______________, ______; and that:
(Initial One)
[ ] neither the Lease nor any of the documents listed in Paragraph
7 (if any), contain an option for any additional term or
terms.
[ ] the Lease and/or the documents listed under Paragraph 7,
above, contain an option for __________ additional term(s) of
___________ year(s) and _____________ month(s) (each) at a
rent to be determined as follows:
9. That Landlord has not rebated, reduced or waived any amounts
due from Tenant under the Lease, whether orally or in writing, nor has Landlord
provided financing for, made loans or advances to, or invested in the business
of Tenant.
10. That, to the best of Tenant's knowledge, there is no apparent
or likely contamination of the real property or the Premises by hazardous
materials, and Tenant does not use, nor has Tenant disposed of, hazardous
materials in violation of environmental laws on the real property or the
Premises.
11. That there are no actions, voluntary or involuntary, pending
against the Tenant under the bankruptcy laws of the United States or any state
thereof.
12. That this certification is made knowing that the Landlord and
[list mortgagee, beneficiary, purchaser or prospective purchaser of the Building
or any interest therein] are relying upon the representations herein made.
Tenant:
, a
--------------------------------
corporation
-----------------------
By:
--------------------------------------
Dated: Typed Name:
---------------- -------------------------------
Title:
-------------------------------
Attachment:
Exhibit "A": Copy of the Lease
EXHIBIT "D"
Page 2 of 2
64
EXHIBIT "E"
FOURTH FLOOR EXPANSION PREMISES LEASE IMPROVEMENT AGREEMENT
61. IMPROVEMENTS
(1) At Tenant's expense, Tenant shall furnish and install
substantially in accordance with the construction drawings and
specifications approved by Tenant and Landlord, partitions,
doors, lighting fixtures, floor coverings, electrical outlets,
building standard office telephone outlets, air conditioning
(including, without limitation, the "Supplemental HVAC
System", as defined in the Special Stipulations), fire
sprinklers and other fire protection systems, security
systems, signage, wall finishes, construction clean-up, and
other improvements to the Fourth Floor Expansion Premises
required by Tenant in the Fourth Floor Expansion Premises (the
"Fourth Floor Expansion Tenant Improvements"). Tenant shall
cause to be prepared at Tenant's expense all architectural
plans and specifications, equipment layout plans, and all
structural, mechanical and electrical engineering plans and
specifications (the "Fourth Floor Expansion Plans") required
for Tenant's occupancy. The Fourth Floor Expansion Plans shall
be subject to approval of Landlord and the government
officials having jurisdiction over same. Upon approval of the
Fourth Floor Expansion Plans, and prior to completion of the
Landlord's Fourth Floor Expansion Work as described in
subparagraph 1(b) of this Fourth Floor Expansion Premises
Lease Improvement Agreement, Tenant shall be authorized to
proceed with the Fourth Floor Expansion Tenant Improvements in
accordance with the Fourth Floor Expansion Plans.
(2) At Landlord's expense, Landlord shall provide the improvements
described in Exhibit "E-2" attached hereto and by this
reference incorporated herein (hereinafter referred to as
"Landlord's Fourth Floor Expansion Work") on or before January
1, 2000.
(3) Landlord shall provide a construction management team that
will supervise and facilitate Landlord's Fourth Floor
Expansion Work and the Fourth Floor Expansion Tenant
Improvements. Such construction management team shall receive
a management fee calculated as follows: (i) 5% of the amount
of all costs and expenses (including general conditions)
contained in the contract for construction of the Fourth Floor
Expansion Tenant Improvements entered into with Tenant's
general contractor approved by Landlord, other than any costs
or expenses associated with the purchase, construction or
installation of the Telecommunications Equipment, the
Generator, Generator Fuel Tank, and accompanying uninterrupted
power supply, and the Supplemental HVAC System (as such terms
are defined in the Special Stipulations) (collectively, the
"Specified Contract Amounts"), and (ii) 2 1/2% of the cost of
purchasing, constructing and installing the Generator,
Generator Fuel Tank, and accompanying uninterrupted power
supply and the Supplemental HVAC System (collectively, the
"Generator and Supplemental HVAC Costs"), with the maximum
amount due and payable by reason of the application of such 2
1/2% being limited to $50,000. Such construction management
fee shall be paid to Landlord's construction manager as a
disbursement from "Landlord's Fourth Floor Expansion
Allowance" (as defined below).
62. LANDLORD'S ALLOWANCE
(1) As Landlord's contribution to work provided in Paragraph 1(a),
Landlord shall provide Tenant with an allowance of Two Hundred
Seventeen Thousand Two Hundred Sixty and 00/100 Dollars
($217,260.00) with respect to the Fourth Floor Expansion
Premises (hereinafter referred to as "Landlord's Fourth Floor
Expansion Allowance"). Tenant and
EXHIBIT "E"
Page 1 of 4
65
Landlord acknowledge and agree that at Tenant's option (and
subject to the Fourth Floor Expansion Plans), Tenant shall
have the right to utilize an exposed ceiling in any or all
areas of the Fourth Floor Expansion Premises in lieu of
ceiling grid and ceiling tile. Any such election by Tenant
must be noted on the Fourth Floor Expansion Plans. Landlord
and Tenant agree that such an election by Tenant will result
in savings to Landlord, and as such, Landlord agrees that it
shall provide Tenant with an additional credit in an amount
equal to the difference between (1) $6,100, and (2) the
product obtained by multiplying the sum of $6,100 by a
fraction, the numerator of which is the number of ceiling
tiles that Tenant elects to install in the Fourth Floor
Expansion Premises and the denominator of which is the number
of ceiling tiles that may be installed in the ceiling grid as
configured as of the date hereof (as denominated by Tenant on
the Fourth Floor Expansion Plans) (the "Fourth Floor Base
Building Credit Allowance"). The Fourth Floor Base Building
Credit Allowance shall be paid to Tenant in the same manner as
the Landlord's Fourth Floor Expansion Allowance. In addition,
in the event that Tenant elects to remove all or any portion
of the ceiling grid, Tenant shall pay Landlord an amount equal
to the product obtained by multiplying the sum of $12,920 by a
fraction, the numerator of which is the square footage of the
ceiling grid that is removed, and the denominator of which is
the total square footage of the ceiling grid actually
installed as of this date (as denominated by Tenant on the
Fourth Floor Expansion Plans), which amount shall be paid by
Tenant to Landlord on or before the Fourth Floor Expansion
Effective Date. Notwithstanding the above, Tenant may, at
Tenant's discretion, use up to Fifty-Four Thousand Three
Hundred Fifteen and 00/100 Dollars ($54,315.00) of Landlord's
Fourth Floor Expansion Allowance for costs related to design
and construction of the Fourth Floor Expansion Tenant
Improvements, Tenant's signage costs, moving expenses and
installation of Tenant's furniture.
(2) Landlord shall pay Landlord's Fourth Floor Expansion Allowance
to Tenant in multiple draws of no less than $50,000 each upon
satisfaction of the following conditions:
(1) Tenant shall provide Landlord no more frequently than
monthly with an affidavit ("Tenant's Affidavit")
wherein (i) Tenant submits that the Fourth Floor
Expansion Tenant Improvements completed as of such
date have been completed in accordance with the
Fourth Floor Expansion Plans, (ii) Tenant includes a
signed AIA Form G-702 Request for Payment (or other
form as may be reasonably specified by Landlord)(a
"Draw Request"); (iii) Tenant submits a schedule
listing all of the contractors, subcontractors,
materialmen and suppliers who have provided labor,
services and/or materials to the Fourth Floor
Expansion Premises as part of the construction of the
Fourth Floor Expansion Tenant Improvements
(collectively, "Contractors"), and lien waivers
therefrom through the date of such Tenant's
Affidavit, and (iv) Tenant attaches copies of all
invoices from Contractors; and
(2) Within five (5) business days of receipt of Tenant's
Affidavit, Landlord or Landlord's representative
shall have inspected the Fourth Floor Expansion
Premises and confirmed that the Fourth Floor
Expansion Tenant Improvements have been completed in
accordance with the Fourth Floor Expansion Plans,
which confirmation shall not be unreasonably
withheld, conditioned or delayed. Any failure by
Landlord to inspect and confirm that the Fourth Floor
Expansion Tenant Improvements have been completed in
accordance with the Fourth Floor Expansion Plans
within five (5) Business days of receipt of Tenant's
Affidavit shall be deemed to result in Landlord's
approval thereof.
(3) Upon satisfaction of each of the foregoing conditions
in this subparagraph 2(b), Landlord shall advance to
Tenant an amount equal to ninety percent (90%) of the
amount requested in Tenant's Draw Request, with the
balance of such amount (the "Retainage")
EXHIBIT "E"
Page 2 of 4
66
being disbursed in accordance with the provisions of
subparagraph 2(c), below.
(3) Landlord shall advance any remaining balance of Landlord's
Fourth Floor Expansion Allowance to Tenant (including any and
all Retainage) upon satisfaction of the following conditions:
(1) Tenant shall have provided Landlord with Tenant's
Affidavits complying with the provisions of
subparagraph 2(b), above, and with full and final
lien waivers from all Contractors (including a final
affidavit and lien waiver from Tenant's general
contractor);
(2) Tenant has provided Landlord with a certification
from Tenant's architect of record (the "Architect's
Certificate") certifying that the Fourth Floor
Expansion Tenant Improvements have been completed in
accordance with the Fourth Floor Expansion Plans;
(3) Within five (5) business days of receipt of Tenant's
Affidavit and the Architect's Certificate, Landlord
or Landlord's representative shall have inspected the
Fourth Floor Expansion Premises and confirmed that
the Fourth Floor Expansion Tenant Improvements have
been completed in accordance with the Fourth Floor
Expansion Plans, which confirmation shall not be
unreasonably withheld, conditioned or delayed. Any
failure by Landlord to inspect and confirm that the
Fourth Floor Expansion Tenant Improvements have been
completed in accordance with the Fourth Floor
Expansion Plans within five (5) Business days of
receipt of Tenant's Affidavit and the Architect's
Certificate shall be deemed to result in Landlord's
approval thereof.
(4) Tenant shall have provided Landlord with a final
Certificate of Occupancy for the Fourth Floor
Expansion Premises;
(5) Tenant shall have been operating its business in the
Fourth Floor Expansion Premises for at least five (5)
business days; and
(6) Tenant shall have delivered to Landlord one (1)
complete set of "as-built" drawings of the Fourth
Floor Expansion Premises reflecting the construction
of the Fourth Floor Expansion Tenant Improvements.
63. TENANT'S COST
(1) Tenant shall bear the cost, if any, of the Fourth Floor
Expansion Tenant's Improvements over and above the Landlord's
Fourth Floor Expansion Allowance (such additional cost is
hereinafter referred to as "Tenant's Cost"). The cost of any
modifications of any part of the work described in Paragraph 1
already completed that are requested by Tenant shall
constitute part of Tenant's Cost.
(2) Tenant shall pay for all costs associated with any
Tenant-requested changes or modifications of the Fourth Floor
Expansion Tenant Improvements after the Fourth Floor Expansion
Plans have been approved by Landlord.
64. PLANNING SCHEDULE
(1) Tenant shall diligently pursue the preparation of the Fourth
Floor Expansion Plans in accordance with Exhibit "E-1". The
Fourth Floor Expansion Plans shall be prepared in
EXHIBIT "E"
Page 3 of 4
67
conformance with Landlord's reasonable requirements and all
applicable codes, ordinances and laws, and shall specify
materials and details equal to or better than Landlord's
building standard. The Fourth Floor Expansion Plans shall be
subject to approval of Landlord (which approval shall not be
unreasonably withheld, conditioned or delayed), and the
government officials having jurisdiction. Tenant shall submit
complete construction plans to Landlord for approval and
Landlord shall approve said Fourth Floor Expansion Plans in
accordance with Exhibit "E-1".
(2) Upon Landlord's approval of the Fourth Floor Expansion Plans
and completion of Landlord's Fourth Floor Expansion Work,
Tenant shall be authorized to proceed with the improvement of
the Premises in accordance with the Fourth Floor Expansion
Plans. Exhibit "C-1" provides the intermediate actions
required of both Landlord and Tenant to satisfy the schedule
hereof. Landlord shall have the right to engage such technical
consultants, planners, and engineers as may be reasonably
required to assist Landlord in evaluating the Fourth Floor
Expansion Tenant Improvements and the Fourth Floor Expansion
Plans, all at Tenant's sole cost and expense; provided,
however, that in no event shall Tenant's cost therefor exceed
1.5% of aggregate amount of the Specified Contract Amounts and
the Generator and Supplemental HVAC Costs.
65. TENANT'S WORK
All work not within the scope of the normal construction trades
employed in the Building, including, but not limited to, furnishing and
installing of the Telecommunications Equipment, telephones, furniture, and
office equipment shall be furnished and installed by Tenant at Tenant's expense.
Tenant's Contractors shall be acceptable to and approved by Landlord (which
approval shall not be unreasonably withheld, conditioned or delayed), and shall
be subject to the reasonable administrative supervision of Landlord. Contractors
engaged by Tenant shall employ persons and means to insure so far as may be
possible the progress of the work without interruption on account of strikes,
work stoppages or similar causes for delay. Landlord shall give access and entry
to the Fourth Floor Expansion Premises to Tenant and its Contractors and
reasonable opportunity and time and reasonable use of facilities to enable
Tenant to adapt the Expansion Premises for Tenant's use; provided, however, that
if such entry is prior to the Fourth Floor Expansion Effective Date, such entry
shall be subject to all the terms and conditions of the Lease, except the
payment of Rent. In furtherance of the foregoing, Tenant covenants and agrees
that the Fourth Floor Expansion Plans shall include plans outlining specifically
the location of the conduit paths to be installed by Tenant. Any and all such
conduit paths shall be of a size approved by Landlord and shall be installed at
a location in the Building risers specified by Landlord. At Landlord's option,
Landlord may request Tenant to install additional conduit at the time Tenant
installs conduit in the risers for purposes of serving the Premises, and
Landlord shall pay for the cost and expense of such additional conduit and any
incremental labor cost (if any) incurred by Tenant as a result of installation
of such additional conduit. Tenant will not unreasonably withhold, condition or
delay its consent to Landlord's request to so install the additional conduit
described and identified in the immediately preceding sentence.
EXHIBIT "E"
Page 4 of 4
68
EXHIBIT "E-1"
SCHEDULE OF FOURTH FLOOR EXPANSION PREMISES IMPROVEMENTS
THE FOLLOWING SCHEDULE MORE CLEARLY DEFINES THE INTERMEDIATE STEPS ESSENTIAL TO
MEET THE DATES AS PROVIDED IN EXHIBIT "C":
ACTION DATE
1. PRELIMINARY SPACE PLAN DELIVERED TO September 2, 199
LANDLORD:
2. LANDLORD'S ACCEPTANCE OF PRELIMINARY SPACE September 10, 1999
PLAN REFLECTING LANDLORD'S COMMENTS:
14 days after
---------------------
3. CONSTRUCTION DOCUMENTS TO LANDLORD BY Action 2
TENANT:
5 days after
---------------------
4. LANDLORD'S REVIEW/ACCEPTANCE OF CONSTRUCTION DOCUMENTS Action 2
NO LATER THAN:
6 days after
---------------------
5. TENANT SHALL MAKE LANDLORD'S REVISIONS TO CONSTRUCTION Action 4
DOCUMENTS, IF NECESSARY, AND RELEASE LANDLORD APPROVED
CONSTRUCTION DOCUMENTS FOR BIDDING AND PERMITTING:
7 days after
---------------------
6. COMMENCEMENT OF CONSTRUCTION, SUBJECT TO PERMIT APPROVAL Action 5
BY CODE OFFICIALS HAVING JURISDICTION:
No later than March 1,
7. SUBSTANTIAL COMPLETION AND OCCUPANCY BY TENANT: 2000
NOTE: SCHEDULE ASSUMES ALL MATERIALS, EQUIPMENT, AND FINISHES ARE IN STOCK OR
AVAILABLE IN A TIMELY MANNER SO AS TO NOT DELAY THE JOB PROGRESS. SUBSTITUTION
OR DELETION OF SPECIFIED ITEMS MAY BE REQUIRED TO MAINTAIN SCHEDULE. LANDLORD'S
OBLIGATION TO MEET ANY OR ALL OF THE DATES SET FORTH ABOVE SHALL BE SUBJECT TO
LANDLORD'S ACTUAL RECEIPT OF TENANT'S PLANS AND CONSTRUCTION DOCUMENTS, PROGRAM
INFORMATION, ETC. ON OR BEFORE THE DATES SET FORTH ABOVE.
EXHIBIT "E-1"
69
EXHIBIT "E-2"
LANDLORD'S WORK FOR FOURTH FLOOR EXPANSION PREMISES
1. STRUCTURE
Steel Structure with poured concrete floor over metal pan with a level
concrete floor (broom clean) ready for installation of glue down
carpeting (or other Tenant finish).
2. PERIMETER WALLS
Glass and precast concrete with the inside face of walls insulated and
with drywall installed, spackled, taped and sanded. Primer and paint
(or other finish) by Tenant.
3. COLUMNS AND CORE WALLS
(2) All columns shall be exposed. Framing, drywall and finish by
Tenant.
(3) The core walls shall be framed, drywalled, spackled, finished,
taped and sanded from slab to ceiling ready to accept a wall
finish. Core walls in public corridor will be finished by
Landlord. Core walls in Tenant space will be finished by
Tenant.
4. WINDOW TREATMENTS
1" horizontal mini-blinds at all perimeter glass.
5. DRAWINGS
The Landlord shall deliver the following base building
drawings/documents as needed by Tenant:
(a) A dimensional outline floor plan at a minimum scale of 1/8" =
1'0".
(b) Structural drawings showing the size and layout of the framing
for the Tenant's floor and the floor immediately above and below.
(c) Mechanical and Electrical Drawings (as needed).
6. CORE
(a) Multi-Tenant Floor
Core complete with air conditioning, restrooms, finished
elevators, elevator lobby (with carpet, fire doors, lights,
finished walls and ceiling), stairways, ventilation shafts,
electrical/telephone rooms, mechanical room, janitor's closet,
and any required finished existing corridors (with carpet,
lights, finished walls and ceiling).
(b) Full-Floor Tenant
Core complete with air conditioning, restrooms,
finished elevators, unfinished elevator lobby, stairways,
ventilation shafts, electrical/telephone rooms, mechanical
room and janitor's closet.
7. DRINKING FOUNTAINS
One ADA accessible drinking fountain per floor.
EXHIBIT "E-2"
Page 1 of 3
70
8. RESTROOMS
Two common ADA accessible restrooms finished according to building
standard with ceramic floors, ceramic wet walls, wallcovering on other
walls, finished ceilings, granite vanities, enclosed stalls,
accessories, fixtures, trim and lighting.
9. DOORS
Finished wood stain doors complete with metal frame trim and hardware,
installed on all doorways in the service core with lever handle
hardware.
10. TELEPHONE
Access in telephone and electrical rooms on each floor to wiring for
telephone. Landlord will provide and install the appropriate wiring
from the base of the Building to such telephone and electrical rooms.
Wiring from rooms shall be Tenant's responsibility, at Tenant's
expense, to install and subscribe to any such service if Tenant so
desires.
11. PLUMBING
One valved point of connection for cold water. Two points of connection
to waste and vent lines on each floor.
12. AIR CONDITIONING
Each floor is equipped with two (2) 15-ton multizone constant volume
airhandlers which provide approximately 12,000 cubic feet per minute
(CFM) per unit. Each of these handlers serves the primary ductwork for
5 zones (i.e., ten zones per floor). Six of the 10 zones per floor are
heated with thermostatically controlled duct heaters which range in
size from 5KW to 9KW. The lobby level and the top floor (floor 36) have
all zones heated with duct heaters. Two (2) Carrier centrifugal
chillers (1040 tons and 1070 tons) provide cooling to the building.
13. ELECTRICAL
An electrical capacity of 5 xxxxx per square foot of rentable area for
low voltage electrical consumption (120/208 volts) and 4.5 xxxxx per
square foot of rentable area for high voltage lighting and HVAC
(277/480 volts). Landlord will provide (but not install) up to one (1)
two foot x four foot fluorescent lighting fixture per one hundred (100)
rentable square feet of the Demised Premises. Separate submeters shall
be placed on all abnormal electrical consumptions as part of Tenant's
work.
Emergency power to serve elevators, emergency lighting, fire alarm and
security equipment will be provided by a diesel generator.
14. FIRE PROTECTION
(a) Fire Sprinklers
Subject to Tenant's right to install a dry sprinkler system
under Paragraph 5(f) of the Special Stipulations, a complete,
automatic fire protection system conforming to NFPA 13 and
hydraulically designed in accordance with NFPA 13 for Light
Hazard Occupancy is provided for all tenant spaces and common
areas. Mechanical areas in the building are designed in
accordance with NFPA 13 for ordinary hazard occupancies. Areas
with completed ceilings will be provided with chrome plated
brass pendant heads centered in ceiling tiles. Brass upright
heads, mounted as required to meet base system requirements
will be installed in areas with unfinished ceilings, with any
turn downs and installation of pendant heads
EXHIBIT "E-2"
Page 2 of 3
71
performed as part of Tenant work. Lobby areas with gypsum
board ceilings will have concealed pendant heads with flush
ceiling coverplates.
(b) Fire Alarm
A fire alarm system including pull stations, ceiling and duct
mounted smoke detectors, water flow switches and tamper
switches will be installed as required to initiate alarms,
horns, and strobe devices for occupant evacuation. The system
shall comply, at a minimum, with the applicable provisions of
the ADA, NFPA 101, NFPA 72, NFPA 90A, NFPA 90B, and the Safety
Code for Elevators (ASME A17.1). Tenant shall be required to
install compatible devices within the Premises and connect to
base Building riser as part of Tenant buildout. (Compatible
devices are those that are UL listed for fire alarms and UL
listed to be used with Notifier Fire Alarm systems).
15. CEILING
A 2'x2' ceiling grid installed at 8'9" above finished floor which, if
removed by Tenant, shall be paid for by Tenant in the manner provided
in Paragraph 2(a) of the Fourth Floor Expansion Premises Lease
Improvement Agreement. Landlord shall cause ceiling tile to be
delivered to the Fourth Floor Expansion Premises in sufficient
quantities to be installed in the grid retained (or installed in
accordance with Building standard dimensions) by Tenant upon approval
by Landlord of the Fourth Floor Expansion Plans and request by Tenant
for delivery of such tile. Ceiling tile to be 24" x 24" Beveled Tegular
Cortega by Xxxxxxxxx or similar.
16. ELEVATORS
Building Elevators
(a) High Rise
The lobby and high rise floors (floors 20-34) are served by
five (5) 3500 pound capacity elevators each operating at 1000
feet per minute. Each of these elevators is a gearless
traction model.
(b) Low Rise
The low rise floors (floors 1-19, there is no floor 13) are
served by six (6) 3500 pound capacity elevators each operating
at 700 feet per minute. Each of these elevators is a gearless
traction model.
(c) Top Three Floors
The top three floors (floors 34-36) are served by one (1) 3000
pound capacity elevator operating at 200 feet per minute. This
elevator is a geared traction model.
(d) Freight Elevator
The main building's 36 floors (floors 1-36 and basement, but
there is no floor 13) are served by one (1) freight elevator.
The freight elevator has 3500 pounds of capacity and operates
at 1000 feet per minute. The freight elevator is a gearless
traction model.
Parking Deck and Loading Dock Elevators
- Parking Deck Elevator
The parking deck is served by two (2) 2000 pound capacity
passenger elevators operating at 300 feet per minute. Each of
these two elevators serves all seven levels of the parking deck
and two levels below the parking deck.
- Loading Dock Elevator
The loading dock elevator shuttles between the loading dock on the
east end of the building and the basement where transfer can be
made to the freight elevator. This elevator has 5000 pounds of
capacity and operates at 35 feet per minute. The loading dock
elevator is a hydraulically operated model.
Elevator Control System
The elevators are operated by a newly installed all-digital SCR
drive controller.
EXHIBIT "E-2"
Page 3 of 3
72
EXHIBIT "F"
LEGAL DESCRIPTION OF PROPERTY
PARCEL ONE
ALL THAT TRACT OR PARCEL of land lying and being in Land Xxx 00 xx xxx 00xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, being the entire city block bounded by Spring,
Walton, Cone and Marietta Streets as said streets are presently located in the
City of Atlanta, Georgia, and being more particularly described as follows:
BEGINNING at the intersection of the northwestern right-of-way line of Cone
Street (60 foot R/W) and the northeastern right-of-way line of Marietta Street
(variable R/W); thence along said northeastern right-of-way line of Xxxxxxxx
Xxxxxx Xxxxx 00 degrees 09 minutes 36 seconds West a distance of 200.14 feet to
a point at the intersection of said northeastern right-of-way line with the
southeastern right-of-way line of Spring Street (50 foot R/W); thence along said
southeastern right-of-way line of Spring Xxxxxx Xxxxx 00 degrees 32 minutes 24
seconds East a distance of 230.87 feet to a nail placed at the intersection of
said southeastern right-of-way line with the southwestern right-of-way line of
Walton Street (60 foot R/W); thence along said southwestern right-of-way line of
Xxxxxx Xxxxxx Xxxxx 00 degrees 38 minutes 36 seconds East a distance of 200.21
feet to a nail placed at the intersection of said southwestern right-of-way line
and the northwestern right-of-way line of Cone Street; thence along said
northwestern right-of-way line of Cone Street South 49 degrees 33 minutes 39
seconds West a distance of 229.06 feet to a point at the intersection of said
northwestern right-of-way line and the northeastern right-of-way line of
Marietta Street and the POINT OF BEGINNING; said tract containing 1.05672 acres
according to a survey for Lennar Partners, Inc., Insignia Commercial Group, Inc.
and their Successors and Assigns, and Chicago Title Insurance Company, prepared
by Xxxxx & Xxxxxxxx Engineers, Inc., dated March 1, 1995, last revised January
11, 1996, and bearing the certification of V.T. Xxxxxxx, Georgia Registered Land
Surveyor No. 2554.
EXHIBIT "F"
Page 1 of 1
73
EXHIBIT "G"
SPECIAL STIPULATIONS
1. PARKING.
Subject in all respects to the terms of this Lease, from and after the
Commencement Date, Tenant shall have the right to use two (2) reserved
and thirty two (32) unreserved spaces (for a total of thirty four (34)
spaces) in the parking garage serving the Building. At the commencement
of the term of this Lease, parking rates for the reserved spaces shall
be One Hundred Twenty Five and No/100 dollars ($125.00) per reserved
space per month and Seventy-Five and No/100 dollars ($75.00) per
unreserved space per month. Landlord and Tenant acknowledge and agree
that such rates are subject to increases based on market conditions.
2. RENEWAL OPTION.
(a) Tenant, provided that it is not in default and has not sublet
the Premises or assigned this Lease, shall have one (1) option
to extend the term of this Lease for a period of five (5)
years. To exercise such option, Tenant shall be required to
give Landlord written notice of Tenant's desire to exercise
such option at least eight (8) months prior to the then
existing expiration date of the Lease Term.
(b) Within fifteen (15) days after Tenant's notice to Landlord
setting forth Tenant's desire to extend the Lease Term
pursuant to this Xxxxxxxxx 0, Xxxxxxxx shall notify Tenant as
to whether Landlord approves or denies such extension.
Landlord's decision shall be subject to Landlord's reasonable
evaluation and consideration of the following:
(i) whether there is an Event of Default under this Lease
or any condition which, with the giving of notice and
the passage of time, would constitute an Event of
Default under this Lease; and
(ii) the status of Tenant's credit at the time of Tenant's
notice of its desire to extend the Lease Term.
(c) During the Lease Term as extended by this extension option as
properly exercised and approved by Landlord, all terms and
conditions of this Lease shall remain unchanged and in full
force and effect, except that Base Rent during the Lease Term
as so extended shall be the then current effective market rate
for tenants for similar office space in the Building and as
determined in Landlord's reasonable judgment. In determining
said then current effective market rate, the following
factors, among others, shall be taken into account and given
effect: size, location of Premises, lease term, condition of
Premises, economic concessions then being granted by Landlord
to tenants, and services provided by Landlord.
(d) If Tenant is entitled to and properly exercises the foregoing
renewal option, Landlord shall prepare an amendment (the
"Renewal Amendment") to reflect changes in the Base Rent,
Lease Term, termination date and other appropriate terms.
Tenant shall execute and return such Renewal Amendment to
Landlord within fifteen (15) days after Tenant's receipt
thereof from Landlord. If Tenant, in its sole discretion, is
not satisfied with the terms of the Renewal Amendment offered
by Landlord, Tenant may decline to execute the same and this
Lease shall not be extended.
EXHIBIT "G"
Page 1 of 12
74
3. RIGHT OF SECOND REFUSAL.
Tenant shall have the right of second refusal on the fifth (5th) floor
of the Building (the "Second Refusal Space"), subject to the prior
right of first refusal granted to Xxxxxx Broadcasting System, Inc. Such
right of second refusal shall be exercised as follows: In the event
that, at any time during the Lease Term, Landlord receives and desires
to accept one or more offers (each, an "Offer") to lease a Second
Refusal Space and any other tenant of the Building with a prior right
of first refusal with respect thereto declines to exercise its right of
first refusal with respect to such Second Refusal Space, then Landlord
shall advise Tenant in writing (the "Advice") of such facts. The Advice
shall include a statement that the Advice is being given pursuant to
the right of second refusal granted in this Lease and a statement that
Tenant must respond to the Advice within ten (10) days of its receipt
of same or lose its right to lease the offered space. The Advice shall
also include the identity of the prospective tenant and a true, correct
and complete copy of the signed Offer. Tenant may lease such Second
Refusal Space in its entirety only, under the terms contained in the
Offer or on such other terms as may be acceptable to Landlord in its
reasonable discretion, by delivering written notice (the "Notice of
Exercise") of its election to lease the Second Refusal Space covered by
such Offer to Landlord within said ten (10) days period, except that
Tenant shall have no such right of second refusal, and Landlord need
not provide Tenant with an Advice, if:
1. Tenant is in default under the Lease at the time
Landlord would otherwise deliver the Advice; or
2. the Premises, or any portion thereof, is sublet at
the time Landlord would otherwise deliver the Advice;
or
3. the Lease has been assigned prior to the date
Landlord would otherwise deliver the Advice; or
4. Tenant is not occupying the Premises on the date
Landlord would otherwise deliver the Advice.
The term for the Second Refusal Space shall commence upon the
commencement date specified in the Advice and thereupon such Second
Refusal Space shall be considered a part of the Premises, provided that
all of the terms specified in the Advice shall govern Tenant's leasing
of the Second Refusal Space and, only to the extent that they do not
conflict with the Advice, the terms and conditions of this Lease shall
apply to the Second Refusal Space.
The Second Refusal Space (including improvements and
personalty, if any) shall be accepted by Tenant in its condition and
as-built configuration existing on the earlier of the date Tenant takes
possession of the Second Refusal Space or the date the term for such
Second Refusal Space commences, unless the Advice specifies any work to
be performed by Landlord in the Second Refusal Space, in which case
Landlord shall perform such work in the Second Refusal Space.
The rights of Tenant hereunder with respect to any Second
Refusal Space shall terminate on the earlier to occur of (i) the date
six (6) months prior to the expiration date of the original Lease Term
(without regard to renewals or extensions thereof); (ii) with respect
only to any Second Refusal Space described in an Advice (but not
otherwise), Tenant's failure to exercise its right of second refusal
within the ten (10) day period provided hereinabove with respect to any
such Second Refusal Space for which an Advice is so given by Landlord;
and (iii) with respect only to any Second Refusal Space described in an
Advice (but not otherwise), the date Landlord would have provided
Tenant an Advice thereof if Tenant had not been in violation of one or
more of the conditions set forth hereinabove.
EXHIBIT "G"
Page 2 of 12
75
If Tenant exercises its right of second refusal, Landlord shall
prepare an amendment (the "Amendment") adding the Second Refusal Space
to the Premises on the terms set forth in the Advice, and reflecting
the changes in the Base Rent, Approximate Rentable Area of the
Premises, Tenant's Pro Rata Share, and other appropriate terms. A copy
of the Amendment shall be (i) sent to Tenant within a reasonable time
after receipt of the Notice of Exercise executed by Tenant, and (ii)
executed by Tenant and returned to Landlord within ten (10) days
thereafter.
4. TELECOMMUNICATIONS EQUIPMENT.
Upon, prior to or after completion of the Fourth Floor Expansion
Premises, Tenant shall have the right, to install the
Telecommunications Equipment in the Fourth Floor Expansion Premises.
Tenant agrees that all such equipment shall comply with all applicable
Lease provisions. Tenant (or its authorized representative) shall (a)
install the Telecommunications Equipment in compliance with all
applicable codes, ordinances, and statutes, (b) be responsible to
obtain all governmental approvals, permits, licenses, and the like
related to such installation and the operation of the
Telecommunications Equipment, (c) comply with all insurance
requirements applicable thereto, and (d) indemnify and hold Landlord
harmless for any claims, damages, losses, liabilities, or expenses
(including reasonable attorneys' fees) which Landlord may incur or
sustain by reason of any failure of Tenant to install the
Telecommunications Equipment in compliance with all applicable codes,
ordinances, and statutes and for any damage to the Premises, Building,
or Property caused by such installation. Landlord shall not be liable
for the failure of the Telecommunications Equipment (unless caused by
the negligent action or failure to act by Landlord or its agents) or
for the improper installation thereof by Tenant. Upon the expiration or
sooner termination of this Lease, Tenant will remove the
Telecommunications Equipment and the cabling from the risers, along
with any ancillary equipment or structures and shall repair any damage
to the Premises, the Building, or any other improvements to the
Property caused thereby. Tenant covenants that the Telecommunications
Equipment will not emit radiation in excess of that which may be
permitted under applicable law or regulation, as same may be modified
from time to time, including, without limitation, regulations of the
Federal Communications Commission, the Environmental Protection Agency,
and the Occupational Safety and Health Administration, applicable to
the emission of radiation from active telecommunications equipment or
similar facilities. Other than with respect to the rights of any
tenants, occupants or licensees under any currently existing leases or
licenses for space at the Property to continue to use and enjoy any
telecommunications or other equipment, Landlord will not knowingly
perform (or fail to perform) any act or permit any tenant, occupant or
licensor of the Property, and their respective employees and invitees,
or any other person or entity to perform (or fail to perform) any act,
that may interfere with or impede Tenant's use of the
Telecommunications Equipment. Tenant understands and agrees, however,
that Landlord may be required to shut down the power or other Building
services from time to time and, in such event, Landlord shall cooperate
with Tenant to the fullest extent possible to schedule such matters at
a time that may be mutually convenient in order to permit to the
fullest extent possible Tenant to continue to use the
Telecommunications Equipment in an unimpeded and uninterrupted manner.
Except in the case of emergency, Landlord shall provide Tenant with
written notice at least three (3) Business days prior to the date that
Landlord intends to shut down the power or other Building services. In
the event that Landlord so shuts down the power or other Building
services, in no event and under no circumstances shall Tenant's use of
the Generator, the Rooftop Equipment or the Supplement HVAC Systems be
impeded or interrupted unless such power or other Building services are
shut down as a result of an emergency. Landlord shall act reasonably
and in good faith for purposes of determining whether a state of
emergency exists sufficient to require the power or other Building
services to be shut down from time to time.
EXHIBIT "G"
Page 3 of 12
76
5. SUPPLEMENTAL HVAC.
Subject to (i) compliance with all rules, regulations, statutes and
codes of any governmental authority having jurisdiction thereover, (ii)
Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, and (iii) Tenant's
removal and restoration obligation set forth below, Tenant shall have
the right to install supplemental heating, ventilation and
air-conditioning systems (the "Supplemental HVAC Systems"), to provide
HVAC capacity to the Premises sufficient for Tenant's Permitted Use.
The foregoing shall include granting to Tenant a right of access to,
and the non-exclusive use of, areas outside the Premises (including
areas within which the Building HVAC equipment and accessories are
located), for installation, maintenance, repair and (if necessary)
replacement of certain components of such Supplemental HVAC Systems;
provided such access shall be coordinated with Landlord and conducted
at such times and in such manner as is reasonably approved by Landlord
in order to ensure that any such work is performed properly, in
compliance with all applicable legal requirements and with a minimum of
disruption to, interference with and/or interruption of the quiet use
and enjoyment by all tenants of the Building of their respective
premises and the common areas. Although the precise location of the
principal components of the Supplemental HVAC Systems cannot be finally
determined until such time as Landlord has reviewed Tenant's Plans with
respect thereto, Landlord presently anticipates that such principal
components will be located in the parking garage directly across from
the northeast side of the second floor of the Building. The precise
location of the Supplemental HVAC Systems (and its principal
components) shall be identified by Landlord upon approval by Landlord
of Tenant's Plans. Any parking spaces eliminated as a result of the
installation of the Supplement HVAC Systems shall be paid for by Tenant
at the prevailing rate from time to time, and any such parking spaces
so utilized by Tenant for installing and operating the Supplement HVAC
Systems shall reduce the number of parking spaces otherwise available
to Tenant pursuant to the terms and provisions of Paragraph 1 of these
Special Stipulations. In connection with Landlord's evaluation and
identification of the location of the Supplemental HVAC Systems (and
its principal components), Tenant acknowledges and agrees that Landlord
must approve the size, weight, drainage, and other specifications of
the Supplemental HVAC Systems, its integration with any Building
systems, and any impact it may have thereon, and that Tenant shall
install at Landlord's direction such screening as Landlord may require
for purposes of making the area surrounding the Supplemental HVAC
Systems esthetically pleasing and reducing any noise and vibration
emanating from the Supplemental HVAC Systems (which screening shall be
constructed and installed by Tenant at its sole cost and expense).
Although the precise location of the Supplemental HVAC Systems (and its
principal components) cannot be identified as of this date, Landlord
hereby represents and warrants that it will designate an area of the
Property outside the Premises for purposes of locating, constructing
and installing the Supplemental HVAC Systems (and its principal
components). In connection with the foregoing, Tenant shall be
permitted to vent out the portion of the Fourth Floor Expansion
Premises (the precise location of which shall be approved by Landlord)
which faces the rear of the Building, at Tenant's sole cost and
expense. Tenant (a) shall install the Supplemental HVAC Systems in
compliance with all applicable codes, ordinances, and statutes, (b)
shall be responsible to obtain all governmental approvals, permits,
licenses, and the like related to such installation, (c) shall comply
with all legal and insurance requirements applicable thereto, and (d)
shall indemnify and hold Landlord harmless for any claims, damages,
losses, liabilities, or expenses (including reasonable attorneys' fees)
which Landlord may incur or sustain by reason of any failure of Tenant
to install the Supplemental HVAC Systems in compliance with all
applicable codes, ordinances, and statutes and for any damage to the
Premises, Building, or Property caused by such installation. Landlord
shall not be liable for the failure of the Supplemental HVAC Systems
(unless caused by the negligent action or failure to act by Landlord or
its agents) or for the improper installation thereof by Tenant. Upon
the expiration or sooner termination of this Lease, Tenant shall remove
the Supplemental HVAC Systems installed pursuant hereto (along with any
and all ancillary equipment or structures) from the Premises and repair
any damage to the Premises or Building caused by such removal.
EXHIBIT "G"
Page 4 of 12
77
6. GENERATOR.
Subject to (i) compliance with all rules, regulations, statutes and
codes of any governmental authority having jurisdiction thereover, (ii)
Landlord's prior written consent as to the location and design and
installation plans and specifications therefor, which consent shall not
be unreasonably withheld, delayed or conditioned, and (iii) Tenant's
removal and restoration obligation set forth below, Tenant shall have
the right to purchase and install one generator (including any
necessary appurtenant equipment that is a part thereof, the
"Generator") and one fuel storage tank for the Generator (the
"Generator Fuel Tank") in the lower level of the parking garage of the
Building at a spot to be more specifically identified by Landlord (the
"Generator Area"). The precise location of the Generator shall be
determined based on the size and specifications of the Generator
submitted by Tenant to and approved by Landlord. Any parking spaces
eliminated after the date hereof as a result of the installation of the
Generator and Generator Fuel Tank shall be paid for by Tenant at the
prevailing rate from time to time, and any such parking spaces so
utilized by Tenant for installing and operating the Generator and
Generator Fuel Tank shall reduce the number of parking spaces otherwise
available to Tenant pursuant to the terms and provisions of Paragraph 1
of these Special Stipulations. Additionally, Landlord shall furnish a
pathway for Tenant to run lines from the Premises to the Generator at a
location chosen by Landlord as more fully set forth in Paragraph 7
hereof. Tenant's installation, use and operation of the Generator and
the Generator Fuel Tank shall be exercised: (1) in such manner as will
not create any hazardous condition or interfere with or impair the
operation of the heating, ventilation, air conditioning, plumbing,
electrical, fire protection, life safety, public utilities or other
systems or facilities in the Building; (2) in compliance with all
applicable laws, codes and regulations and the requirements of any
board of fire insurance underwriters or other similar bodies now or
hereafter constituted relating to or affecting thereto; (3) in such a
manner as will not directly or indirectly interfere with, delay,
restrict or impose any expense, work or obligation upon Landlord in the
use or operation of such Building; and (4) at Tenant's cost, including
the cost of repairing all damage to the Building and any personal
injury and/or property damage attributable to the installation,
inspection, adjustment, maintenance, removal or replacement of any
equipment, apparatus or facilities pursuant to this Paragraph 6. In
connection with Tenant's use of the Generator and the Generator Fuel
Tank, and subject to the above-stated responsibilities of Tenant,
Tenant shall have the right to operate the Generator at such intervals
and for such periods of time as may be recommended by or required by
the manufacturer of such generator for testing or maintenance purposes,
or at such other intervals as Tenant deems necessary in its reasonable
judgment for purposes of operating its business; provided (i) to the
fullest extent possible, Tenant will provide notice to Landlord of the
scheduled times for such regular testing and operation for maintenance
purposes, (ii) Tenant will use all reasonable and diligent efforts to
perform any testing or periodic operation for maintenance purposes
outside of Normal Business Hours (it being acknowledged by Landlord
that certain testing and operation for maintenance and other business
purposes will necessarily take place during peak operational periods,
which may include during Normal Business Hours), and (iii) such testing
will be performed in a manner reasonably calculated to minimize any
inconvenience to other tenants and occupants of the Building, and their
respective employees and invitees.
Tenant will obtain prior to the installation of the Generator and
Generator Fuel Tank, any and all necessary licenses, approvals and
permits necessary for the installation, maintenance and use of the
Generator, Generator Fuel Tank and any equipment installed in
connection therewith. Tenant shall indemnify and hold Landlord harmless
from and against any and all loss, cost (including reasonable
attorney's fees incurred in defending Landlord), damage or liability
arising out of any violations of any laws, statutes, ordinances, rules
or regulations, or arising out of the use, operation and maintenance of
the Generator and the Generator Fuel Tank, including, without
EXHIBIT "G"
Page 5 of 12
78
limitation any damage Landlord may sustain as a result of the
malfunction, leaking or any other condition of the Generator, Generator
Fuel Tank or other related equipment described in this paragraph. If
the rate of any insurance carried by Landlord is increased as a result
of Tenant's installation of the Generator and related Generator Fuel
Tank, then Tenant will pay to Landlord within thirty (30) days after
Landlord delivers to Tenant a certified statement from Landlord's
insurance carrier stating that the rate increase was caused thereby, a
sum equal to the difference between the original premium and the
increased premium resulting therefrom. Upon the expiration or sooner
termination of this Lease, Tenant shall remove the Generator and
Generator Fuel Tank along with any ancillary equipment or structures
and shall repair any damage to the Premises, the Building, or any other
improvements to the Property caused thereby.
7. CONNECTING RIGHTS.
Landlord agrees that the right of Tenant to install the facilities and
systems described in Paragraphs 4, 5, 6, 10 and 13 hereof includes (i)
the right to connect such systems to the Premises by running supply
lines, connections, cabling and other appropriate means of connection
from the areas of the Building within which certain equipment forming a
part of such systems are installed to all areas of the Premises,
including the use of vertical risers, core areas and other means of
connection as are shown on the Plans or as may otherwise be designated
by Landlord in good faith, and (ii) a right of access to such areas in
order to perform necessary maintenance, repair, replacement (if
necessary) and testing, provided such access shall be coordinated with
Landlord and conducted at such times and in such manner as is
reasonably approved by Landlord in order to ensure that any such work
is performed properly, in compliance with all applicable legal
requirements and with a minimum of disruption to, interference with
and/or interruption of the quiet use and enjoyment by all tenants of
the Building of their respective premises and the common areas.
Landlord warrants and represents that the right of quiet enjoyment
granted by Landlord to other tenants of the Building will not impede or
unreasonably interfere with the rights granted to Tenant in
subparagraphs (i) and (ii) of this Paragraph (it being understood,
however, that such Tenant rights shall be subject to the reasonable
rules and regulations of Landlord designed to minimize any disruption
to or interference with the quiet use and enjoyment by other tenants of
the Building). In performing the connections and other activities
described in this Paragraph, Tenant (a) shall perform same in
compliance with all applicable codes, ordinances, and statutes, (b)
shall be responsible to obtain all governmental approvals, permits,
licenses, and the like related thereto, (c) shall comply with all legal
and insurance requirements applicable thereto, (d) shall repair and/or
restore any areas of Building or Land affected thereby, and (e) shall
indemnify and hold Landlord harmless for any claims, damages, losses,
liabilities, or expenses (including reasonable attorneys' fees) which
Landlord may incur or sustain by reason of any failure of Tenant to
perform same in compliance with all applicable codes, ordinances, and
statutes and for any damage to the Premises, Building, or Property
caused thereby. Unless Landlord notifies Tenant no later than ninety
(90) days prior to the last day of the Lease Term that it is requiring
Tenant to surrender the connections and lines described in this
Paragraph 7 as redesigned by Tenant in accordance herewith upon the
expiration or sooner termination of this Lease (in which case the same
shall be surrendered by Tenant at such time), then Tenant will, on or
before the date of expiration or sooner termination of this Lease (and
at Tenant's sole expense), remove such connections and repair any
damage to the Premises, the Building, or any other improvements to the
Property caused thereby, provided the foregoing removal obligation will
not be construed to require the removal of any cables or
telecommunications lines which thereafter continues to serve as a
connection to telecommunications service being provided to tenants of
the Building. Landlord agrees to cooperate with Tenant and its general
contractor to facilitate such access, provided (i) such access will be
scheduled at night or during other non-business hours, or at such other
times as may be consented to by the affected tenants, consistent with
the rights of such tenants pursuant to
EXHIBIT "G"
Page 6 of 12
79
their leases, including the right of quiet enjoyment, (ii) such work
shall be performed in accordance with all of the provisions of this
Paragraph 7 with regard to the performance of such work by Tenant and
its contractors, and (iii) such work will be performed as expeditiously
as possible, in a manner which will cause a minimum of disturbance and
disruption to the affected tenants, and in all events in a manner which
will not violate the rights of such affected tenants, or their quiet
enjoyment, under their respective leases. Without limitation, unless
approved by the affected tenant(s), the foregoing will include
protection of any furniture, fixtures and/or equipment of such affected
tenants, removal of construction equipment, tools and other items
necessary to perform such work from the affected areas except when such
work is actively being conducted, and daily clean-up of construction
debris, dust and materials in a manner acceptable to the affected
tenants.
8. FLOOR LOADING.
Tenant agrees that it shall not place a load upon any floor which
exceeds the load per square foot which such floor was designed to carry
and which is allowed by law; provided, however, that Landlord shall
permit reinforcing the load capacity of the Fourth Floor Expansion
Premises and the Third Floor Expansion Premises (and, possibly, the
Fifth Floor in the event Tenant occupies the Fifth Floor pursuant to
this Lease, or otherwise) (collectively, the "Permitted Reinforcement
Floors"), pursuant to plans and specifications approved by Landlord
(which approval shall not be unreasonably withheld, conditioned or
delayed), so long as (a) Tenant shall remove any and all improvements
constructed or installed by Tenant for purposes of so reinforcing the
Permitted Reinforcement Floors upon the expiration or earlier
termination of the Lease, and (b) any and all improvements so
constructed or installed by Tenant for purposes of so reinforcing the
Permitted Reinforcement Floors are located within the Premises leased
from time to time by Tenant (and the Fifth Floor of the Building in the
event Tenant occupies such Fifth Floor pursuant to this Lease, or such
other areas in, on or about the interior of the Building core as
permitted by Landlord in writing, which permission shall not be
unreasonably withheld, conditioned or delayed.), and shall not be
visible in any way from the exterior of the Premises.
9. FIRE PROTECTION.
Landlord consents and agrees to the installation by Tenant of a fire
protection system within the Fourth Floor Expansion Premises, which
shall be a FM200 fire suppression, dry sprinkler system (or such other
system approved by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed). Landlord will enable Tenant to
connect up to ten (10) zones to Landlord's fire alarm system. All costs
including programming the system shall be at Tenant's sole cost and
expense. All costs associated with the modification or removal of any
existing Landlord systems shall be at Tenant's sole cost and expense.
10. ELECTRICAL.
In order to accommodate and provide adequate electrical service for
Tenant's Permitted Use within the Fourth Floor Expansion Premises,
Tenant will be permitted to supplement the electrical service serving
the Fourth Floor Expansion Premises in order to utilize at all times
during the Term an additional 2,000 amps of 3 Phase, 480 volt
electrical service available to the Building (in addition to that which
is currently available as part of the Building standard), provided that
such service will be installed from the Building electrical room to the
Fourth Floor Expansion Premises at Tenant's sole expense, all in
accordance with plans approved by Landlord, not to be unreasonably
withheld, conditioned or delayed. At such time as Landlord's
electrician has certified that such additional 2000 amps of electrical
service is available in the Building electrical room for Tenant's
installation into the Fourth Floor Expansion Premises, Tenant agrees
EXHIBIT "G"
Page 7 of 12
80
to pay Landlord a single, lump sum payment of $50,000.00 for such
electrical service, which amount shall be deemed and construed to be a
Tenant Cost under the terms of the Fourth Floor Expansion Premises
Lease Improvement Agreement (and therefore eligible for payment from
Landlord's Fourth Floor Expansion Allowance in accordance with the
terms of the Fourth Floor Expansion Premises Lease Improvement
Agreement). Landlord hereby warrants and represents that the aforesaid
additional 2000 amps are presently available to the Building and will
remain available to the Building for Tenant's sole and exclusive use
during the Term. Without limitation, Tenant agrees that any
modifications to the electrical systems contemplated herein must be
performed and conducted at such times and in such manner as will avoid
to the fullest extent possible and practical any disruption or
interruption in electrical service to the Building which are either
occupied or otherwise in use. Landlord must approve any disruption or
interruption in electrical service to any other areas of the Building,
which approval shall not be unreasonably withheld, conditioned or
delayed so long as such interruption is scheduled during non-business
hours. In addition, upon notice by Tenant submitted no earlier than the
first anniversary of the Fourth Floor Expansion Effective Date (and no
later than the third anniversary of the Fourth Floor Expansion
Effective Date, after which time Tenant's rights contemplated in this
sentence shall expire), Tenant shall have the right to request an
additional 1,000 amps of 3 Phase, 480 volt electrical service (in
addition to that which is described hereinabove) for purposes of
servicing the Fourth Floor Expansion Premises, but not otherwise. Upon
receipt of Tenant's request, Landlord shall provide Tenant with an
estimate of the cost of providing such service to the Building
electrical room. Upon receipt of Tenant's payment of the anticipated
cost of providing such electrical service (together with a fee in the
amount of ten percent (10%) of such cost to be paid to Landlord on
account of the cost to order, construct, and install such additional
service to the Building electrical room), Landlord shall enter into
such contracts as may be necessary or appropriate, if any, for purposes
of arranging for such additional electrical service to be provided to
the Building electrical room, and shall thereafter diligently pursue
the construction and installation of such service through completion.
Landlord hereby warrants and represents that the aforesaid additional
1000 amps are presently available to the Building and will remain
available to the Building for Tenant's sole and exclusive use during
the Term if Tenant exercises its rights thereto as provided herein on
or before the third anniversary of the Fourth Floor Expansion Date (at
which time Tenant's right to such additional amps shall terminate if
not then exercised by Tenant pursuant to the terms hereof). In the
event that Tenant requests any additional electrical service beyond
that which is described in the immediately preceding provisions of this
Special Stipulation, Landlord shall cooperate in good faith with Tenant
to provide such additional service so long as the allocation of such
additional service shall not, in Landlord's sole determination,
adversely affect Landlord's ability to provide existing or future
tenants of the Building with the level of electrical service Landlord
may anticipate to be utilized by such tenants. In the event that
Landlord is unable to accommodate Tenant's request for additional
electrical service in excess of the additional 3000 amps described
hereinabove, Landlord shall cooperate with Tenant to permit Tenant to
purchase additional electrical service directly from Georgia Power or
any other provider of electrical service to the Building. Any and all
costs and expenses associated with such installation or use of the
additional power shall be paid for by Tenant. In the event that
Landlord is in a position to accommodate Tenant's request for
additional electrical service beyond that which is expressly provided
for in this Special Stipulation, Landlord shall provide Tenant with an
estimate of the cost of providing such service. Upon receipt of
Tenant's payment of the anticipated cost of providing such additional
electrical service (together with a fee in the amount of ten percent
(10%) of such cost to be paid to Landlord on account of the cost to
order, construct and install such additional service to the Building
electrical room), Landlord shall enter into such contracts as may be
necessary or appropriate for purposes of arranging for such additional
electrical service to be provided to the Building electrical room for
installation to the Premises by Tenant, and shall thereafter diligently
pursue the construction and installation of such service to the
Building electrical room through completion.
EXHIBIT "G"
Page 8 of 12
81
11. SOUND CONTROL.
Tenant is responsible for taking the necessary measures to reduce any
sound transmissions caused by Tenant's Telecommunications Equipment
between the Premises and the adjacent premises. In addition, the
Generator, including radiator, shall be installed in a walk-around
type, sound attenuating enclosure which shall limit the sound to no
more than 85 dBA as measured at three (3) feet from any side, top or
bottom, under all operating conditions.
12. ADDITIONAL SECURITY SYSTEM.
Tenant hereby agrees to the exercise by Landlord and its agents and
employees, within their sole discretion, of such security measures as
Landlord deems necessary or appropriate for the Building.
Notwithstanding the foregoing, Tenant may install a security system
within the Premises, provided such system and its installation (i)
shall be subject to Landlord's prior written approval, which shall not
be unreasonably withheld (provided it shall not be unreasonable for
Landlord to deny consent to any system which is not compatible with the
building's overall security and fire safety and life safety systems),
(ii) shall be in accordance with all applicable legal requirements
(iii) shall be performed at Tenant's sole expense, and shall be
otherwise installed in accordance with the provisions governing
alterations under Section 8 of the Lease.
13. MFS FIBER.
Landlord and Tenant agree to cooperate for purposes of facilitating the
installation by MFS/Worldcom of fiber optic service (the "MFS Fiber")
to the Building. Landlord and Tenant acknowledge that there are no
assurances that MFS/Worldcom will agree to install the MFS Fiber to the
Building, and neither such party shall have any obligation to pay any
cost or expense in connection with such installation to the Building.
In the event that MFS/Worldcom so elects to install the MFS Fiber to
the Building, Tenant shall pay the cost and expense of installing such
cable, conduit, and other improvements as may be required for purposes
of connecting the MFS Fiber from the point at which the MFS Fiber is
installed in the Building to the Premises. Landlord agrees that in the
event that the MFS Fiber is installed in the Building, Landlord shall
(a) use reasonable efforts to cooperate with MFS/Worldcom to ensure the
continuous operation and maintenance of the MFS Fiber in the Building
and the Premises during the Lease Term, and (b) take no action which
would cause the termination or interruption of the MFS Fiber service to
the Building or the Premises without Tenant's prior consent, which
consent shall not be unreasonably withheld, conditioned or delayed.
14. ROOF EQUIPMENT.
It is understood by Landlord that Tenant may desire to install two
satellite dishes and a microwave relay station antenna (the "Roof
Equipment") on the roof of the Building for the purpose of transmitting
and receiving aerial transmissions. At least thirty (30) days prior to
the time that Tenant contemplates installation of the Roof Equipment,
Tenant shall deliver to Landlord detailed specifications for the Roof
Equipment, and Landlord and Tenant shall use their reasonable efforts
to determine and agree to a location on the roof of the Building where,
and a method by which, the Roof Equipment can be installed by Tenant
(but at no cost or expense to Landlord) without, in the reasonable
judgment of Landlord and the design architect of the Building (which
judgment shall not be unreasonably withheld or delayed), interfering
with or impeding the operations of Landlord or the operations of any
present tenant of the Building at the time the Roof Equipment is
installed, or requiring any design or other changes to the Building.
EXHIBIT "G"
Page 9 of 12
82
At such time as the location and installation method are thus
determined and agreed, Tenant, at its sole cost and expense, may
install such Roof Equipment at the location and in the manner agreed by
Landlord and Tenant at such time as Landlord shall reasonably designate
(it being understood and agreed that Landlord hereby represents and
warrants that Landlord shall reserve at all times during the Term of
the Lease space sufficient on the Roof to install the Roof Equipment of
the kinds and types customarily installed by communication companies
with communications requirements comparable to Tenant's). If the agreed
location for the Roof Equipment is in such a position that the Roof
Equipment will be visible from the ground, Landlord may require that
Tenant, at Tenant's expense, provide, install and maintain an
appropriate screen around the Roof Equipment. Tenant shall cause the
installation of the Roof Equipment and any screen to be conducted in a
good, workmanlike and lien-free manner that will not interfere with or
impede the operation of the Building and the conduct of business by
other tenants of the Building. Tenant shall perform such installation,
and shall at all times maintain and operate the Roof Equipment in such
a manner as to always be in compliance with all applicable governmental
codes, statutes, ordinances, rules and regulations and all requirements
of Landlord's and Tenant's insurance policies, and shall obtain such
licenses or permits as may be required by applicable law. Landlord
makes no warranties whatsoever as to the permissibility of, or the
ability to obtain licenses or permits with respect to, the Roof
Equipment. Prior to installation of the Roof Equipment and throughout
the Lease Term upon Landlord's request, Tenant shall provide Landlord
with documentation (i) evidencing that Tenant has entered into an
appropriate contract for the regular maintenance and monitoring of the
Roof Equipment, and (ii) confirming that Tenant's liability insurance
as required under Paragraph 12 of this Lease covers all of Tenant's
activities in installing, maintaining and operating the Roof Equipment.
Tenant agrees that it shall pay Landlord as additional Rent the sum of
$1,200.00 per year for each satellite dish comprising a portion of the
Roof Equipment installed pursuant to the provisions of this Special
Stipulation, and $1,000.00 per year for the microwave relay station
antenna comprising the balance of such Roof Equipment. Landlord shall
incur no cost or expense related to or arising out of the Roof
Equipment or the purchase, installation, maintenance, repair or
operation of the Roof Equipment, Tenant agreeing to pay all of same.
Tenant hereby indemnifies and agrees to hold Landlord harmless from and
against any and all loss, cost, damage and liability incurred by
Landlord arising out of or related to the Roof Equipment or Tenant's
purchase, installation, maintenance, repair or operation of the Roof
Equipment. If at any time during the term of this Lease after the
initial installation of the Roof Equipment, Landlord determines that
the location or operation of the Roof Equipment impedes the operation
of the Building or impedes the operations of any tenant (other than any
Tenant in the Building prior to the date hereof which Tenant hereby
covenants not to disturb through the use of the Roof Equipment) or
proposed tenant of the Building, then Landlord, at Landlord's expense
(and without disruption or interruption of the operation of the Rooftop
Equipment during any period of relocation without Tenant's consent,
which consent shall be provided at reasonable times upon reasonable
notice), may relocate the Roof Equipment to another location on the
roof which location shall be subject to Tenant's reasonable approval.
In addition, Tenant hereby recognizes, understands and agrees that
Landlord is entitled to install for its own account, or permit the
installation by other tenants or persons, other antenna and
telecommunication facilities on the roof of the Building without
Tenant's approval or consent after the date hereof so long as the
installation and/or operation of such antenna or other
telecommunications equipment will not unreasonably interfere with the
operation of Tenant's Roof Equipment. At the end of the Lease Term,
Tenant, at Tenant's sole cost and expense, shall remove the Roof
Equipment from the Building, and shall restore the roof of the Building
to its condition as of the Commencement Date.
EXHIBIT "G"
Page 10 of 12
83
15. INTERPRETATION.
In the event of any direct or indirect conflict between the terms of
this Exhibit "G" and the terms of the body of this Lease, and any
Exhibits hereto, this Exhibit "G" shall govern and control in all
respects.
16. ACCESS.
Subject in all respects to the provisions of this Lease governing
casualty, condemnation, governmental regulation or intervention and
emergencies, Tenant and Tenant's employees, agents, sub-contractors,
invitees, assignee's and licensee's shall have continuous and
uninterrupted access (24 hours per day on every day of each year during
the Lease Term) to the Premises, Telecommunications Equipment,
Supplemental HVAC Systems, Generator Area, Generator, Generator Fuel
Tank, the connectors described in Paragraph 5(d) of this Exhibit "G",
the Roof Equipment, and the MFS Fiber (collectively, the "Tenant
Area"), for purposes concerning or pertaining to Tenant's Permitted
Use, including without limitation, the delivery, installation,
maintenance and repair of equipment or other personal property therein
or thereto.
17. QUIET ENJOYMENT.
Landlord represents and warrants that Tenant shall peaceably and
quietly have, hold and enjoy the right to use the Tenant Area without
interference, hindrance or molestation from Landlord or any party
claiming by, through or under Landlord upon (and subject to) the terms
and conditions of this Lease.
18. ADDITIONAL BUILDING SERVICES.
Landlord and Tenant have agreed that Tenant may install the
Supplemental HVAC Systems that will require additional chilled water as
part of the installation and operation thereof. As such, Tenant shall
cause a special meter or submeter (as directed by Landlord) to be
installed in order to measure the actual amount of chilled water
consumed by Tenant. In addition, Landlord and Tenant anticipate that
the Telecommunications Equipment and the Supplemental HVAC Systems will
result in the use of electrical current in excess of the building
standard allocated in accordance with Exhibit "H"attached hereto. Upon
receipt of Tenant's Plans for the Fourth Floor Expansion Premises,
Landlord shall cooperate with Tenant for purposes of identifying such
meters and submeters as may be required to be installed for purposes of
measuring the amount of electrical current so utilized by Tenant in
excess of the foregoing building standard allocation, and Tenant shall
construct and install such meters or submeters as part of the Fourth
Floor Expansion Tenant Improvements. The cost and expense of such
meters or submeters, as the case may be, for purposes of measuring
chilled water and/or electricity shall be paid for and installed by
Tenant at its sole cost and expense. Landlord shall cause such meters
or submeters to be read monthly, in arrears, and shall render an
invoice to Tenant for the services measured thereby to be paid at the
time and in the manner Base Rent and other charges are required to be
paid hereunder.
Finally, Landlord and Tenant acknowledge that this Lease permits Tenant
to install Telecommunications Equipment on the Third Floor Expansion
Premises (and, possibly, the Fifth Floor in the event that Tenant
occupies the Fifth Floor pursuant to the terms of this Lease, or
otherwise) (the "Additional Telecommunications Space"). In the event
that Tenant elects to utilize Additional Telecommunications Space for
the construction, installation and operation of Telecommunications
Equipment, Landlord must review and approve (which approval shall not
be unreasonably withheld, conditioned or delayed) all equipment, tenant
improvement, and other plans proposed by Tenant for purposes of
constructing, installing and operating any Telecommunications Equipment
within the Additional Telecommunications Space as a condition to
Landlord's permission to so construct, install and operate any
Telecommunications Equipment
EXHIBIT "G"
Page 11 of 12
84
within the Additional Telecommunications Space. Tenant hereby ratifies
and confirms the provisions of the Lease requiring Tenant to pay for
any increased usage in electricity (including any additional electrical
amperage contemplated by the provisions of Paragraph 10 of these
Special Stipulations), water, or other utilities serving the Premises
in excess of those services generally consumed by tenants of general
office space, and shall install such meters or submeters (as directed
by Landlord) for purposes of measuring the consumption of such
additional utilities or other services as a result of the installation
of the Telecommunications Equipment in the Additional
Telecommunications Space, or otherwise.
EXHIBIT "H"
BUILDING STANDARD ELECTRICAL SPECIFICATIONS
BUILDING STANDARD RATED ELECTRICAL DESIGN LOAD:
LOW VOLTAGE - 2 XXXXX PER RENTABLE SQUARE FOOT
HIGH VOLTAGE - 2 XXXXX PER RENTABLE SQUARE FOOT
BUILDING STANDARD CIRCUITS:
LOW VOLTAGE - 1 PER 000 XXXXXXXX XXXXXX FOOT
HIGH VOLTAGE - 1 PER 000 XXXXXXXX XXXXXX FOOT
BUILDING STANDARD ELECTRICAL CONSUMPTION LEVELS:
LOW VOLTAGE - 2 XXXXX PER RENTABLE SQUARE FOOT AVERAGE PER FLOOR FOR
EACH NORMAL BUSINESS HOUR
HIGH VOLTAGE - 2 XXXXX PER RENTABLE SQUARE FOOT AVERAGE PER FLOOR FOR
EACH NORMAL BUSINESS HOUR
Page 12 of 12
85
LEASE
TABLE OF CONTENTS
AND PROPERTY ............................................................................. 7
AND POSSESSION ........................................................................... 7
TO RENT .................................................................................. 9
WITH LAWS ................................................................................ 10
AND SUBLETTING ........................................................................... 12
AND INDEMNIFICATION ...................................................................... 14
OF SUBROGATION ........................................................................... 16
AND UTILITIES ............................................................................ 16
CERTIFICATE .............................................................................. 19
OVER ..................................................................................... 20
AND REGULATIONS .......................................................................... 21
BY LANDLORD .............................................................................. 21
OR BANKRUPTCY ............................................................................ 22
BY FIRE, ETC ............................................................................. 25
BY LANDLORD .............................................................................. 28
OF LANDLORD TO PERFORM ................................................................... 28
OF PREMISES .............................................................................. 28
RIGHTS RESERVED TO THE LANDLORD .......................................................... 29
AND ASSIGNS .............................................................................. 30
'S FEES .................................................................................. 30
DEPOSIT .................................................................................. 30
STATEMENTS ............................................................................... 32
AUTHORITY ................................................................................ 32
AND GROUND LESSOR APPROVALS .............................................................. 33
'S LIEN .................................................................................. 34
ENJOYMENT ................................................................................ 34
'S LIABILITY ............................................................................. 34
ESTATE ................................................................................... 35
EFFECTIVE DATE ........................................................................... 35
MATERIALS ................................................................................ 35
PROVISIONS ............................................................................... 36
/FITNESS FACILITY ........................................................................ 36
STIPULATIONS ............................................................................. 36
BASE RENT ................................................................................ 36
i
